Litigation is a bad form of arbitration that drives further social division and resentment—cultivating ritual solves the root cause.

But the age of the sage kings was long gone. By Confucius’s time people were in difficulties and the authorities were under crushing pressure to address many problems. When one was brought to them in the form of a lawsuit, a trial had to be conducted. Confucius said he was no better than others to carry it out. But, if he could have his way, he would oblige people not to litigate. Was he serious? Civil disputes are inevitable in any society. How could he force people not to litigate? Ideally, he could create a situation in which people were all so enlightened, compassionate, rational, sympathetic and tolerant that they had no frictions and no disputes. But he never claimed such ability. What he possibly could claim was that he could make litigation unnecessary. To understand this claim we have to realise that there are other ways in which disputes can be solved, such as conciliatory deals, mediation and arbitration. We should also know that, in closely knit communities like those of ancient China, there were persons other than judicial officials in whom people could trust as intermediaries in solving disputes. Compared with such measures, litigation could seem quite unattractive because it was not only more costly but also less likely to produce satisfactory results owing to the fact that a judge, being an outsider, could not be familiar with all factors relevant to the dispute. Even in a case where the immediate problem was clear, the judge could find it difficult to sort out its deep and widely tangled roots that had grown through many years, even generations back in time, involving numerous persons of many complicated connections and interactions. A judgment might produce a seemingly clear-cut solution but it could quite possibly be unacceptable to one or even both parties. In such a case, not only the problem remained, but the judicial process might leave a new wound in the relationship between the parties. In addition, there was another reason why a judgment could be difficult and unsatisfactory – there was insufficient law governing civil matters in ancient China. A judge had to apply local custom which was perhaps unknown to him, or appeal to his own perceptions and ideas which might seem prejudiced and alien to the parties involved. For all these reasons, it would be wise and practical for the government to encourage people to settle their disputes out of court. Having these points in mind, we can reasonably assume that Confucius did not mean he could completely eliminate disputes but he could make it unnecessary for people to resort to litigation as a particular method to solve them – he could advise the parties to be conciliatory, to use mediation or arbitration and, of course he would educate the people firstand set himself up as a model of correct behaviour. It was possible that he could succeed in realising his wish.