The system of law is insufficient and will inevitably create injustice—only a system of ritual can ensure prosperity and justice.

To begin with, while some cases may fall squarely within the scope of a law, many may have some aspects which were not foreseen by the law-makers and therefore the law cannot be automatically applied. Second, in many other cases, no law has ever been enacted or there may be several conflicting laws and none strictly fits the circumstance. These problems are common but solutions may vary. In theory, the inadequacy of law could be addressed by making more laws but there are always situations that are not foreseen. If a post hoc law is made and applied retroactively, it would be a most egregious offence against principles of rightness. This is why, where no clearly applicable law is available, most legal systems require judges to resort to custom and jurisprudential principles in civil cases, and allow them to abstain from action in criminal cases. In traditional China, judicial authorities were obliged to act on all cases brought before them. What should they do? Xunzi said that they should yi lei ju (以類舉 to place a case in a category of similar one and then decide). Why? He said that some things, which were different in some details, may have the same roots, they can therefore be considered to be of the same type. Human conduct can also be so categorised. Thus, a law made for one case may be applicable to another. But this cannot be done mechanically. A judge must carefully study the legislative background to determine why a law was adopted, what its immediate objective is, and what effects it may have on society in the long run. He called this investigation yi (議 to deliberate) the yi (義 the true meaning, or the spirit, and the ramifications) of a law. After this investigation and a careful examination of the facts of the case at hand, the judge will be able to decide whether the law can be applied analogically. This process is not easy for a judge but it is necessary. In Xunzi’s words, a judge who knows the spirit of law will be able to handle all cases; a judge who knows only the letter of the law will inevitably be at loss when he encounters a case not clearly covered by an existing law. Xunzi was not the first person who recognised the problem and suggested a solution. Both have been mentioned in The Book of Historical Documents. 3 Xunzi’s recommendation was generally accepted and became a rule known as bi-fu yuanyin (比附援引 to compare and apply by analogy) incorporated into criminal codes of later periods.4 But this practice leads to another problem – the “spirit of law” is nebulous and therefore can be interpreted in different ways, making the result of a trial uncertain – a judge may come to different conclusions in similar cases and different judges may decide the same case differently. The unpredictable outcomes will be highly injurious to the judicial system. Though not difficult to see, this problem was not addressed by Xunzi. Besides honest differences, judges could misuse law because of prejudice or evil intention. Thus, after saying that the scale, the peck, the bushel and other instruments of measurement, which are supposedly to ensure fairness and exactness, can be abused, Xunzi pointed out that law is also a mere instrument and, by itself, not “the source of order”, but can also be misused or abused. Whether it can be used to achieve principles of rightness depends on the person who uses it. Therefore humans are the source of order. When the person using law is just, law can bring justice; when he is dishonest, law can become a tool for injustice. In Xunzi’s words, “when the source is clean the water downstream will be clean; when the source is dirty, the water downstream will be dirty”. This logic led Xunzi to support the rule of the good person and reject the rule of law in the sense that it be applied mechanically in all circumstances. He argued that the laws of the ancient sage kings continued to exist through the later periods but the descendants of those kings did not continue to be rulers. The simple reason is that the later rulers did not use law properly. “Thus,” he famously said, “laws cannot stand by themselves and precedents cannot automatically govern. When there is the right man, they will be properly used; when the right man is gone, they will fall into disuse.” But Xunzi was not simply dismissive of law; he just emphasised its limits; hence his axiom: “The law is the starting point of good government; the ruler is the fountainhead of law. If there is a good ruler, the law may be simple yet it will be sufficient; if there is not a good ruler, the law may be comprehensive yet, when the circumstances change, there will be no proper action taken and the result will be chaos.” As a proof, he pointed out that there had been disorder under good laws but there had never been disorder under a good ruler – from antiquity to his time that was unheard of. Indeed, his observation has been verified by Chinese history after his time as well. Thus, neither high principles nor law is easy to apply. It was undoubtedly for the purpose of solving this problem that another set of norms was created. Known as li (禮 rites), they were rules for proper and refined behaviour initially designed for the upper classes from the rulers down to the shi (士 lowest officers). According to Li-ji (禮記 Notes on Rites), some of them were created by ancient sages but most others had their basis in custom, human feelings, common sense, and reason. As mentioned earlier, Xunzi thought rites necessary because people have limitless desires but the means to satisfy them are finite. This fact leads to competition, strife and disorder. Hating disorder, the ancient sage kings established rites as guidelines for people to follow a safer course in their search for the satisfaction of their desires. Thus, rites are also likened to water-level markers for people to avoid danger. Xunzi hailed rites as “the ultimate standards” for human conduct and assigned extraordinary importance to them, saying that, in personal life, rites guide people to live correctly and behave elegantly; in society, rites prescribe how people of different classes are to live and behave, to stay in their right places and interact with one another amicably; and that, in a country, rites lead to good governance and ensure peace and prosperity. Discarding rites, people will bring misfortune and calamity upon themselves, on society, and on the country.