1

Religious Freedom “with Chinese Characteristics”

Brady Earley*

*
JD Candidate at the University of Chicago Law School
 2

Among the many distinctions China has obtained on the world stage in the last few

decades, the one it has refused to embrace has been its distinction in human rights abuses and

religion. U.S. Secretary of State Mike Pompeo recently proclaimed, “The gravest threat to the

future of religious freedom is the Chinese Communist Party’s war against people of all faiths:

Muslims, Buddhists, Christians, and Falun Gong practitioners alike.”1 Additionally, one member of

the U.S. Commission on International Religious Freedom (USCIRF) has designated China “in a

category by itself” among egregious violators of religious liberty.2 Highlighted by detention and

forced labor of Uyghur Muslims in Xinjiang Province, criticism of China’s religious freedom

violations continues to spread. Outside of the United States, Canada, Lithuania, the Netherlands, and

the United Kingdom have each issued determinations of Chinese treatment of Uyghurs as genocide.3

Beyond the treatment of Uyghurs, China has been formally and repeatedly sanctioned for its

oppressive policy towards other religious groups such as the Falun Gong,4 Tibetan Buddhists,5 and

unofficial protestant congregations such as the Church of Almighty God.6 There is no shortage of

1
China (Includes Tibet, Xinjiang, Hong Kong, and Macau) 2020 International Religious Freedom Report, U.S.
STATE DEPARTMENT 3 (May 12, 2021) https://www.state.gov/wp-content/uploads/2021/05/240282-CHINA-
INCLUDES-TIBET-XINJIANG-HONG-KONG-AND-MACAU-2020-INTERNATIONAL-RELIGIOUS-
FREEDOM-REPORT.pdf [hereinafter China State Department Report].
2
2021 Annual Report, U.S. COMM’N ON INTERNATIONAL RELIGIOUS FREEDOM 18 (Apr. 21, 2021)
https://www.state.gov/wp-content/uploads/2021/05/240282-CHINA-INCLUDES-TIBET-XINJIANG-HONG-
KONG-AND-MACAU-2020-INTERNATIONAL-RELIGIOUS-FREEDOM-REPORT.pdf.
3
See Who are the Uyghurs and Why is China Being Accused of Genocide?, BBC NEWS (Jun. 21, 2021)
https://www.bbc.com/news/world-asia-china-22278037; Andrius Sytas, Lithuanian Parliament Latest to Call
China’s Treatment of Uyghur’s “Genocide”, REUTERS (May 20, 2021)
https://www.reuters.com/world/china/lithuanian-parliament-latest-call-chinas-treatment-uyghurs-genocide-2021-05-
20/.
4
China State Department Report, supra note 1.
5
Id.
6
Id.
 3

international criticism for China’s contemporary laws regulating religion. While China’s modern

approach to religious freedom appears completely intractable, a closer and informed look at historic

precedent reveals that its current model may not be as unworkable as it seems. While Western flavors

of liberalism are the most commonly advocated methods for religious reform in China, the Chinese

approach to religious freedom contains several complementary features which appear to fill some of

the emerging gaps in a Western liberal model of religious freedom.

The following paper offers insights from ancient China to evaluate the pragmatic approach

China has taken to religious freedom. Relying on historical Confucian precedents of religious

accommodation, China’s localized, regulatory, and administrative management of religion suggests

religious freedom with Chinese characteristics need not be an anathema to the Western liberal model

of religious freedom. China’s historical precedent demonstrates ways in which pragmatism may be

successful for those seeking to reform China’s religious freedom laws to produce results consistent

with international human rights standards. This has certainly been the case when viewing China’s

handling of economic reforms that adopted an approach of “socialism with Chinese characteristics”

as well as viewing neighboring Asian countries such as Vietnam and Uzbekistan. In these case

studies, this approach has proved particularly helpful in religious freedom law reform because

integrating cultural values into the law can enables a more natural transition and enduring reform.

This article begins in part I with a review of approaches and limitations for religious freedom

reform in China. Part II presents the pre-modern model of religious freedom in China taking legal

accommodation for filial piety as a prototype for religious freedom “with Chinese characteristics.”

Part III adds insights from China’s modern economic reforms and the religious freedom reform

experience in Vietnam and Uzbekistan. Part IV synthesizes the analysis from Parts II and III into a

modern picture of religious freedom with Chinese characteristics and insists on grounding this
 4

approach in the values of Confucianism. Part V concludes with major takeaways and evaluations

from the foregoing analysis.

LAW, RELIGION, AND REFORM IN MODERN CHINA

When setting out to improve religious freedom in a modern nation-state, a cut and paste mechanism

is an attractive option.7 Many models of Western liberalism8 have appeared rather successful in

handling religious freedom concerns, particularly in North America, Western Europe, and Australia

and the Pacific. Indeed, this model has largely shaped international standards for human rights. So

why has there been difficulty in transplanting these options in a country like China? While many

reasons could be given, Chinese scholars and many Western scholars of China have recognized the

importance of accounting for cultural and political values when suggesting and implementing legal

reforms.

7
While “cut and paste” is an oversimplification, much of the current literature on legal reform in China, particularly
related to religion, has relied heavily on Western conceptions of human rights, liberal values, and constitutionalism.
While this is not inherently problematic, China is particularly sensitive to foreign coercion. See Tian Feilong,
Analysis on the Shortcoming in China’s Legal Code on Religion and Exploration of the Path to Rule of Law in
Religion, 8 CHINESE L. & RELIGION MONITOR 26, 37 (2012) (“In response to the shortcomings of China’s legal
system towards religion discussed above as well as to the real-life escalating clashes between church and state in
reality, legal experts have a standard proposal: make religious freedom a reserved matter of law, upgrade the
‘administrative’ model in the ‘Regulations on Religious Affairs’ to the ‘legalized’ model in a ‘Law on Religious
Affairs’, and push for the enactment of a ‘Law on Religious Affairs of the People’s Republic of China.’); see also
Yan Lin & Tom Ginsburg, Constitutional Interpretation in Law-making: China’s Invisible Constitutional
Enforcement Mechanism, 63 AMERICAN JOURNAL OF COMPARATIVE LAW 467 (2015) (recommending legal reform
by enforcing accountability to China’s current constitution); Songfeng Li, Freedom in Handcuffs: Religious
Freedom in the Constitution of China, 35 JOURNAL OF LAW AND RELIGION 113, 137 (2020) (arguing that
constitutional amendments should be the next steps taken in Chinese legal reform on religion).
8
Throughout this article, “Western,” “liberal democracy,” or “Western liberalism” are terms used to represent key
concepts such as rule of law, human rights, and popular sovereignty achieved through representative government
and democratic mechanisms. This is meant to create a succinct way of grouping nation states with similar political
and legal systems and compare these to more authoritarian forms of government, such as the People’s Republic of
China. See Martin J. Verhoeven, Western Science, Eastern Spirit: Historical Reflections on the East/West
Encounter, 3 J. OF THE INSTITUTE FOR WORLD RELIGIONS 27, 28–29 (2003) (detailing the assumptions made when
using East and West to conduct a comparative analysis).
 5

This is particularly important when dealing with law and religion in China – two concepts

that do not readily translate from Western liberalism. The origins of law in China differs from

Western conceptions. Instead of a basis in natural law, the Chinese, both ancient and modern,

understand law as an exclusively man-made tool to promote order. One Chinese scholar of China’s

legal order and culture has noted how “Chinese lawmaking is primarily based on the pragmatic

considerations of political elites, not on some kind of abstract ideals, such as ‘all men are created

equal.’”9 Instead, “[l]aws in China were meant to solve concrete social problems such as poverty

and wars.”10

This pragmatic approach has characterized Chinese law on religion over many centuries.

During the Warring States Period (ca. 475-221 BCE), the Chinese clan structure began to give

way to a new relationship between individual families and state governance. Given this social

change, this period saw important legal reforms dealing with the rules and organization of the

family in Chinese society. 11 In more recent memory, the Cultural Revolution (1966-76 CE)

brought a concerning level of lawlessness that paved the way for “heavy borrowing from

Western legal models . . . not as a result of an ideological commitment to democracy but a

pragmatic consideration to make China more powerful in the shortest amount of time.” 12 In both

cases, practical concerns dictated legal reform.

China also differs from the West in its conceptualization of religion. In the West,

religious identity is often grounded in membership to a church, congregation, synagogue,

mosque, or other community of believers. There are many external signals of religiosity that

9
SHIPING HUA, CHINESE LEGAL CULTURE AND CONSTITUTIONAL ORDER 3 (2019).
10
Id.
11
YONGPING LIU, ORIGINS OF CHINESE LAW: PENAL AND ADMINISTRATIVE LAW IN ITS EARLY DEVELOPMENT 174
(1998).
12
Hua, supra note 9.
 6

verify activity and make for easy categorization. In addition, membership also serves as proxy

for beliefs. By contrast, Chinese religion resists strict classification both in definition and

membership. Because Eastern religious beliefs often pervade so many aspects of society, China’s

religious traditions have been viewed in Western thought as philosophical rather than religious. 13

There are several reasons for this view. Particularly in Confucianism, Chinese religious

practice has not been particularly occupied with a cultivating a relationship with a singular,

divine, or transcendent being. Rather, “[t]heir natural tendency was to reach out to what was

nearest to them, their direct ancestors, and through them attain to the deity.”14 As a result, much

of Chinese religious practice manifests through devotion to more common and everyday matters.

And while reverence for ancestors is concerned with life after death, similar attitudes are seen as

cultural aspects of other countries as well. Few other countries or cultures, however, would go so

far as to elevate their veneration for ancestors to qualify as a religious practice.

A second reason is that fluidity of membership in Confucianism, Daoism, Buddhism, or

other indigenous Chinese religions tend to fall outside of religious classification. There is no

singular moment, such as a baptism, confirmation, or another religious ceremony to signify that

they have officially joined the religious community. As such, many, if not most, Chinese may

consider themselves a believer in Confucianism yet may or may not be religious. To illustrate

this complex interaction, one study has shown that the way questions about religious affiliation

in China can drastically affect the results of a survey. By many modern measures, China’s

religious demographic often falls outside of classification into the category of “unaffiliated” or

13
Compare Tu Weiming, CENTRALITY AND COMMONALITY: AN ESSAY ON CONFUCIAN RELIGIOUSNESS (1989)
(highlighting the religious components of Confucian thought), with Herbert Fingarette, CONFUCIUS: THE SECULAR
AS SACRED (1972) (understanding Confucianism as a sacralizing secular philosophy with metaphysical components,
not as clearly religious in nature).
14
Donald Holzman, The Place of Filial Piety in Ancient China, 118 JOURNAL OF THE AMERICAN ORIENTAL SOCIETY
2 (1998) https://www.jstor.org/stable/605890?seq=1#metadata_info_tab_contents.
 7

“atheistic.”15 For example, the Spiritual Life Survey was an extensive, independent demographic

survey conducted in China in 2007. Their measures of religiosity in China found 81% of

respondents answered “no” when asked if they had any religious beliefs. 16 This was even higher

than an official (and likely incomplete) government estimate from one decade earlier that

projected religious believers in China at just over 100 million (or about 8% of the population). 17

However, this does not capture the complete picture. In 2012, Pew Research Center

published a demographic study on global religious composition by country. Their data survey

indicated only 52% of the Chinese respondents considered themselves “unaffiliated” with any

religion. This significant gap in findings between the two surveys was addressed in Pew’s

research methodology where they explained, “The 2007 Spiritual Life Study of Chinese

Residents did not offer respondents the same opportunity to choose folk religion as a religious

category as it did to choose the five religions offcially recognized by the Chinese government

Buddhism, Catholicism, Daoism, Islam and Protestantism.”18 The most obvious omission from

the above list is Confucianism which helps to explain a large portion of the gap in findings.

15
According to some demographic studies, China’s religious majority is often categorized as those without any
religious affiliation. China, PEW TEMPLETON GLOBAL RELIGIOUS FUTURES PROJECT
http://www.globalreligiousfutures.org/countries/china#/?affiliations_religion_id=0&affiliations_year=2010&region_
name=All%20Countries&restrictions_year=2016 (last accessed Jul. 8, 2021).
16
Fenggang Yang, et al., Spiritual Life Study of Chinese Residents, THE ASSOCIATION OF RELIGION DATA ARCHIVES
(Sep. 16, 2019) https://www.thearda.com/Archive/Files/Descriptions/SPRTCHNA.asp. See also RELIGIOUS
FREEDOM IN THE WORLD: A GLOBAL REPORT ON FREEDOM AND PERSECUTION 125 (Paul Marshall ed., 2008)
(estimating 10% or more of the population as “atheist”).
17
INFORMATION OFFICE OF THE STATE COUNCIL OF THE PEOPLES REPUBLIC OF CHINA, FREEDOM OF RELIGIOUS
BELIEF IN CHINA 1 (Oct. 1997).
18
The Global Religious Landscape: Appendix A: Methodology, PEW RESEARCH CENTER 64 (Dec. 18, 2012)
https://assets.pewresearch.org/wp-content/uploads/sites/11/2012/12/globalReligion-appA.pdf. See also Global
Christianity: A Report on the Size and Distribution of the World’s Christian Population: Appendix C, PEW FORUM
ON RELIGION & PUBLIC LIFE 97–110 (2011) https://assets.pewresearch.org/wp-
content/uploads/sites/11/2011/12/Christianity-fullreport-web.pdf (detailing the hurdles to obtaining reliable
demographic statistics on religion in China).
 8

On top of China’s fluid definitions for officially recognized religious groups are what

many have called the black market of religion in China.19 In this group, we find religious

believers who are viewed by the state as cults, sects, or merely superstitious and thereby fall

below the bar for qualification as a religion. But even though state officials may write off these

beliefs as heretical or cultish, it is “clear that the term ‘religion’ as used in international

instruments includes minority religious groups, as well as groups that are disparaged by referring

to them as ‘sects’ or ‘cults.’”20 The failure to recognize these groups is another wrinkle to

acknowledge in China’s attempts to quantify religious believers and further distances itself from

Western methods.

Brought together, China’s views on both law and religion naturally lead to divergence

from Western conceptions of religious freedom. This is exemplified by the most comprehensive

modern statement on religious freedom by the Chinese Communist Party known as “Document

19: The Basic Viewpoint on the Religious Question During Our Country’s Socialist Period” or

simply “Document 19.”21 The beginning of Document 19 states:

Religion is a historical phenomenon pertaining to a definite period in the development of

human society. It has its own cycle of emergence, development, and demise. Religious
faith and religious sentiment, along with religious ceremonies and organizations
consonant with this faith and sentiment, are all products of the history of society. 22

In contrast to the West, China’s religious freedom roots rely on religion as a historical and social

construct in a pragmatic legal system. As a result, Western nations have struggled to accurately

resolve many of the religious freedom concerns they perceive occurring in China. To scholars of

19
See, e.g, Fenggang Yang, The Red, Black, and Gray Markets of Religion in China, 47 THE SOCIOLOGICAL
QUARTERLY 1, 93–122 (2006).
20
KIM-KWONG CHAN & ERIC R. CARLSON, RELIGIOUS FREEDOM IN CHINA: POLICY, ADMINISTRATION, AND
REGULATION xii (2005).
21
Document 19: The Basic Viewpoint on the Religious Question During Our Country’s Socialist Period, CENTRAL
COMMITTEE OF THE CHINESE COMMUNIST PARTY (Mar. 31, 1982)
https://original.religlaw.org/content/religlaw/documents/doc19relig1982.htm.
22
Id.
 9

religious freedom in China, the diagnosis of this problem is not new. What this article hopes to

contribute, however, a piecing together of ancient and modern Chinese precedent on law and

religion through a historic, cross-disciplinary, and comparative synthesis (what this article refers

to as a multi-faceted inquiry).

Historically, China has been nominally studied in many ways. Among the first was Max

Weber who took a sociological approach to understanding religion in China. 23 Part of his

analysis attempted to draw connections between Eastern and Western religious traditions by

understanding the relationship of the state vis-à-vis religion. Even though his early analysis laid

important groundwork for further sociological inquiry, it remained so shrouded in Western

religious paradigms that it failed to fully capture Eastern religious thought. For example,

Weber’s concluding chapter highlights parallels between the rational moral reform both

Confucians and Puritans sought to make in society.24 However, Weber left a blind spot in his

analysis due to his view of the “West as special because of its high rationalization of everyday

life.”25 This presupposition limited the reach of his comparison on religion in China.

Another prominent alternative approach has been economics due to its transferable

currency across cultures. 26 The economics of religion, though still forming, has been fruitful for

understanding the foreign aspects of Chinese religious freedom through a market analogy where

religion is dichotomized into supply (religious leaders) and demand (religious adherents). Yet, it

also has its limits. Among the most salient issues of the economic approach is that, while

23
MAX WEBER, THE RELIGION OF CHINA: CONFUCIANISM AND TAOISM (1951).
24
Id. at 226–229.
25
HORST J. HELLE, CHINA: PROMISE OR THREAT?: A COMPARISON OF CULTURES 62 (2017).
26
See, e.g., Aaron J. Walayat, Religion in China: An Economic Approach, 7 INDONESIAN JOURNAL OF
INTERNATIONAL & COMPARATIVE Law 3 (2020); Fenggang Yang, The Red, Black, and Gray Markets of Religion in
China, 47 THE SOCIO. Q. 93 (2006); JIANLIN CHEN, THE LAW AND RELIGIOUS MARKET THEORY: CHINA, TAIWAN
AND HONG KONG (1982).
 10

comparisons yield empirical insights about religion in China, it is often “difficult to determine

the normative takeaways of [such] analysis.” 27

A multivariate, holistic analysis of religious freedom in China responds to these concerns.

For example, finding normative applications is one strength of employing a comparative

approach to religious freedom in China, particularly when it comes to foreign policy

determinations of nations outside of China. Multi-faceted inquiry yields this benefit in two steps.

First, three distinct areas of inquiry can cross-verify one another to form a cohesive and nuanced

narrative. This enables Western nations to understand China on its own terms while resisting

assumption of superiority. For China, this step has too often been overlooked. Several law and

religion scholars of China conclude that failure to understand Chinese values and culture has

only exacerbated attempts at religious freedom reform.28 As some see it, the current “conflictive

impasse” on religious freedom in China continues to pit Chinese policies of strict state control of

religion against Western ideals of free exercise and disestablishment. 29 This has given rise to the

question of whether this impasse over religious freedom is surmountable. In answer to this

question, Dr. Anthony Yu explains:

In reflecting upon such a question and its implications, I am immediately reminded of the
frequent protests by various Chinese leaders and elite personnel that the West lacks
adequate knowledge of China. An example of this gesture can be found in the words of
President Jiang Zemin, who said in an interview with the New York Times in 2000: “I
hope that the Western world can understand China better.”30

27
Walayat, supra note 22, at 44–45.
28 “[T]he most important thing to do now is not yet to strive for a consensus on what the legislation on religion
should contain, but rather to reach a consensus in understanding the role of religion itself in the contemporary
Chinese context. Only when it is clear how we ‘see’—namely understand— religion, will it be easy for us to know
how to ‘deal with’ religion. If we understand religion as an active, harmonious factor in Chinese society, then surely
we will enact legislation on religion to ‘protect’ instead of ‘restrict’ its freedom.” Zhuo Xinping, Religion and Rule
of Law in China Today, 3 BYU LAW REVIEW 519, 527 (2009).
29
See Anthony Yu, On State and Religion in China: A Brief Historical Reflection, 3 J. OF THE INSTITUTE FOR
WORLD RELIGIONS 1, 3 (2003).
30
Id.
 11

Attempting to integrate several methods of inquiry opens the door for understanding China better

on its own terms. It also leads to the next step of building connections. For those hoping to make

a compelling case for religious freedom reform to the Chinese, this step is crucial. This is due in

large part to the Chinese suspicion of foreign influence that has too often brought dishonor and

humiliation in the last century. 31 By contrast, understanding Chinese history, culture, and

tradition allow Western nations to describe religious freedom in terms that retain currency in

Chinese society. Given that some scholars have already put forth arguments for the compatibility

between Western liberalism and Chinese values found in Confucianism, Daoism, and Buddhism,

this suggestion appears attainable.32

Before plowing ahead with the analysis, it is important to recognize that there are still

limitations. In general, using broad categories such as East and West lends itself to the

presupposition “that East and West separate universes and fundamentally divergent modes of

thinking and feeling.”33 More specific to China, there is also a concern that instances of serious

religious persecution should, as USCIRF has described, place China in a “category by itself,”

thereby precluding comparison with Western democracies and assuming one model’s superiority

to the other.

Law professor Randall Peerenboom has already offered one response to this concern. He

first notes that although Western nations including the United States have many of their own

religious freedom challenges, China has demonstrated some religious freedom violations of a

different magnitude. It should be clear that “there are many human rights violations occurring in

31
This point was heavily emphasized throughout the Sino-Norwegian human rights dialogue that annually took
place over several years between Norway and China. See KOEN WELLENS, FREEDOM OF RELIGION OR BELIEF IN
CHINA: EXPERIENCES FORM THE SINO-NORWEGIAN HUMAN RIGHTS DIALOGUE (2010).
32
See, e.g., QIANFAN ZHANG, HUMAN DIGNITY IN CLASSICAL CHINESE PHILOSOPHY (2016); Lei Sun, The Relation
Between Confucianism and Chinese Politics: History, Actuality, and Future, 35 JOURNAL OF LAW AND RELIGION
138 (2020).
33
Verhoeven, supra note 7, at 29.
 12

China that simply cannot be justified,” many involving religious identity. 34 But he is also quick

to point out that the Chinese government “is not rejecting rights wholesale.” 35 Recognizing that

“there are legitimate differences in values at stake and legitimate differences of opinion at issue,”

may assist those trying to give China assistance. 36

This point is bolstered even in the context of China’s attitude toward religious freedom.

Returning to the Sino-Norwegian annual dialogues, China’s deputy director of the foreign affairs

department of State Administration for Religious Affairs (SARA) made the following statement

in 2004: “China signed the international agreements on human rights. Not only do we respect

religious freedom as basic for human rights, but we also do this according to the Chinese

conditions. Different countries have different histories.”37 The deputy director’s statement is

revealing because it demonstrates both a fundamental commitment to religious freedom in the

human rights framework, but also requests that China needs autonomy to pursue this aim in a

way compatible with its historical and social environment. A multi-faceted inquiry is well-suited

to complement this pursuit.

The following sections turn begin mining the meaning of “Chinese conditions” of

religious freedom. Looking anciently first, Part II highlights interactions between Confucianist

principle of 孝 (xìao) or filial piety and the law that evidence ways religion was compatibly

accommodated within the context of strong state policy. This paves the way for a modern

evaluation and then comparative analysis for developing religious freedom “with Chinese

34
RANDALL PEERENBOOM, CHINA’S LONG MARCH TOWARD THE RULE OF LAW 534 (2002).
35
Id.
36
Id. at 537.
37
WELLENS, supra note 26, at 54 (emphasis added).
 13

characteristics.”38 China’s model, though flawed, suggests possible alternatives to religious

freedom reform and foreign policy engagement beyond the Western liberal paradigm.

CONFUCIANISM AND RELIGIOUS ACCOMMODATION IN PRE-MODERN CHINA (ca.

2100 BCE–1912 CE)

To begin understanding religious freedom in China today requires looking back. A close and

informed look into China’s past quickly reveals deeply religious aspects within Chinese society and

the lives of its people. The most salient religious influence in the lives of Han Chinese (the ethnic

majority ancestors of today’s Chinese) is Confucianism.39 It is natural to think of Confucianism as

originating with Confucius. In reality, however, Confucius simply formalized and expounded

principles that dated back to the China’s earliest days. These principles, such as filial piety,

humaneness, loyalty, and others, were exemplified by the sage kings of ancient China.40 Centuries

later, Confucius recognized the need for moral reform in society and turned to those ancient sage

kings for guidance. His advocated moral reforms were heavily influenced by ritual and relationship.

This can be summarized in the five, reciprocating relationships discussed in the teachings of

38
The use of “with Chinese characteristics” is a nod to a speech given by Deng Xiaoping before the National
Congress of the Chinese Communist Party in 1982 where he stated: “We must integrate the universal truth of
Marxism with the concrete realities of China, blaze a path of our own and build socialism with Chinese
characteristics – that is the basic conclusion we have reached after reviewing our long history.” Deng Xiaoping,
Opening Speech at the Twelfth National Congress of the Communist Party (Sep. 1, 1982)
http://en.people.cn/dengxp/vol3/text/c1010.html.
39
Chen Huanzhong, A Brief Overview of Law and Religion in the People’s Republic of China, 2003 BYU LAW
REVIEW 465 (2003) (“Indeed, unlike most Western Societies, China was primarily and officially dominated for more
than two thousand years by the semi-religious influence of Confucian philosophy.”).
40
See, e.g., LIU, supra note 11, at 95 (describing an example of filial piety found in the Shujing (书经), one of the
classical Chinese texts inherited and edited by Confucius). See also DAVID A. PALMER & VINCENT GOOSSAERT, THE
RELIGIOUS QUESTION IN MODERN CHINA 226 (2011) (“The most ancient form of Chinese religion for which a
detailed record is available is the ancestor cult of the Shang royalty; the reverence for parents both living and dead
was the root of the ethical system elaborated by Confucius and extended to all other social relationships; its ritual
formulation in the Scripture on filial piety was one of the most widely circulated texts in imperial China and a canon
of state orthodoxy.”).
 14

Mencius, one of the foremost disciples of Confucius: father and son, sovereign and minister, husband

and wife, old and young, and friends.41

The outgrowth of these fundamental relationships was a Confucian’s riveted focus on filial

piety. Filial piety was considered the “ben (roots) of all benevolent action,”42 “root of humanity,”43

“the constant (method) of Heaven, the righteousness of Earth, and the practical duty of Man.”44

Filial piety was therefore foundational to all else Confucianism aimed to cultivate in society and

individuals. It included far more than simply respect between father and son, or children and parents.

“For any individual, parents constitute an all-important link in their cosmic existence and

continuity. They are one’s ancestors: deceased ancestors after their physical death, and ‘living

ancestors’ while alive. To recompense parents for such cosmic grace, one must practice filial

piety.”45

Furthermore, filial piety in the home was expected to translate into other aspects of

society, particularly in the way a sovereign would interact with his subjects. 46 This understanding

of filial piety places it at the core of Confucianism and the reciprocal relationships that form a

harmonious society. The primary aim of Confucian political philosophy ran parallel to the purpose

of Chinese law today in preserving order and promoting harmony.47 Accomplishing, and sometimes

41
See MENCIUS: TENG WEN GONG I (孟子:腾文公上 ) (trans. James Legge) CHINESE TEXT PROJECT 4
https://ctext.org/mengzi/teng-wen-gong-i (last visited Jul. 13, 2021).
42
LIU, supra note 11, at 95.
43
WING-TSIT CHAN, A SOURCE BOOK IN CHINESE PHILOSOPHY 20 (1963).
44
THE CLASSIC OF FILIAL PIETY: FILIAL PIETY IN RELATION TO THE THREE POWERS (孝经：三才) (trans. James
Legge) CHINESE TEXT PROJECT https://ctext.org/xiao-jing (last visited Jul. 15, 2021).
45
JIANG YONGLIN, THE MANDATE OF HEAVEN AND THE GREAT MING CODE 156 (2011).
46
See THE CLASSIC OF FILIAL PIETY: AMPLIFICATION OF “MAKING OUR NAME FAMOUS” IN CHAPTER I (孝经：广扬
名) (trans. James Legge) CHINESE TEXT PROJECT https://ctext.org/xiao-jing (last visited Jul. 15, 2021) (“[F]ilial piety
with which the superior man services his parents may be transferred as loyalty to the ruler.”).
47
See KLAUS MÜHLHAHN, CRIMINAL JUSTICE IN CHINA: A HISTORY 45 (2009) (“Yet while Chinese law was able to
adapt to accommodate societal change, the similarities in structure and content across legal codes form the Tang to
the Song point to a major trait of law in China. One of its main purposes was to preserve traditional moral values, as
well as to maintain the existing social and political order.”). See also HANS INGVAR ROTH, P.C. CHANG AND THE
UNIVERSAL DECLARATION OF HUMAN RIGHTS 125–126 (2018) (noting the lack of discrimination and religious
 15

balancing, these two aims constituted the most basic responsibilities of a sovereign. Confucius

believed that, ideally, law would eventually become unnecessary if all citizens could perfect certain

moral characteristics and become 君子 (jūnzi), creating a social order where harmony and stability

could flourish.48

Ultimately, Confucians trusted that cultivating virtue through ritual 礼 (lǐ) would be a “better

means for achieving long term order, stability, and prosperity.”49 Until that time, however, law

was necessary as a temporary mechanism. By contrast, the Legalist school of thought, mostly an

outgrowth from the Confucian disciple Han Feizi, centered on a rigid commitment to the rule of law

without any need for ritual. In their “ruthlessly efficient” approach, moral reform of individual

citizens must arise out of harsh punishments and clear consequences to incentivize correct

behavior.50 This left little need for promoting values such as filial piety if the law could provide the

appropriate sticks and carrots to achieve order and harmony.51 Both approaches to social order have

left traces on the legal makeup of modern China.

Importantly, whether viewing the world as a legalist or Confucian, the social goal of law

remained the same. “The purpose of both the Confucian and the Legal Schools was the

maintenance of the social order. The difference between them lay mainly in the problem of what

constituted an ideal social order and by what means such an order could be attained.”52 It is

within this legal environment that filial piety became valuable. Even the most devoted Legalist

conflict in China compared to the West which P.C. Chang attributes to the Confucian emphasis on harmony over
sameness).
48
Often translated as “gentleman” or “noble son,” the word is used to describe anyone with superior or exemplary
moral character.
49
ZHANG, supra note 28, at 106.
50
DERK BODDE & CLARENCE MORRIS, LAW IN IMPERIAL CHINA 27 (1967).
51
But see Holzman, supra note 14, at 190 (“It is clear that Han Feizi takes filial piety seriously, however, because he
devotes the whole of chapter 51 of his work, entitled "Zhongxiao," or "Loyalty and Filial Piety,").
52
QU TONGZU, LAW AND SOCIETY IN TRADITIONAL CHINA 226 (1961).
 16

recognized that filial piety played a powerful role in Chinese social order even when adherents to

its custom did so out of cultural peer pressure rather than religious duty. Because it mirrored the

relationship between sovereign and subject, filial piety could be justified in China’s political

realm due to its value in regulating the fundamental relationships necessary to the Confucian

understanding of the ideal society.

Had political expediency been its only virtue, however, filial piety would not have

persisted across the cultural hydraulics of China’s dynastic rule. Filial piety endured as a

religious obligation manifested in daily life and not just a political or philosophical ideal. As one

scholar explains it, “[F]ilial piety is more than a secular attitude; it has become part of religious

ritual and a constituent element of spirituality.”53 The role of parents and ancestors as creators in

Confucianism can be viewed as a parallel to a transcendent Creator in monotheistic traditions.

“In both cases, the Christian saints and the Chinese paragons of filial piety, we are in the

presence of men and women moved by the noblest of motives . . . acting according to the highest

ideals of their respective cultures: love for Christ and God in the West, filial piety for parents in

China.”54 This religious duty associated with filial piety was so pervasive that it influenced all

aspects of Chinese life for centuries, including law. From antiquity to present day, the influence

of filial piety on Chinese law has mainly manifested itself in one of two ways: laws that punished

unfilial behavior and exemptions created to accommodate filial piety.

The case of punishment for unfilial behavior is quite similar in kind to any society’s

criminalization of certain moral norms. What is perhaps more surprising, however, is the severity of

penalties levied on those who failed in this fundamental religious obligation. For example, lack of

53
YAO XINZHONG, INTRODUCTION TO CONFUCIANISM 202 (2000).
54
Holzman, supra note 14, at 198.
 17

filial piety (不孝) was classified among the “Ten Abominations” (十恶) considered to be the most

abhorrent and harmful to a civilized society.55 The range of unfilial acts that could be prosecuted

were broad,56 and the punishments were particularly severe.57 As recently as the Qing Dynasty, a

child (usually a son) would be prosecuted if his actions could be even tangentially related to the

suicide of one or both of his parents. One young man was sentenced to maximum life exile after

renting land for a coal enterprise because his mother feared that “the project might fail and leave

them destitute,” ceased eating and “in her melancholy anxiety committed suicide.”58 Still other cases

such as failing to mourn for the appropriate amount of time could also make a child liable under laws

regulating filial piety.

The second type of law on filial piety dealt primarily with religious exemptions and

accommodations for filial behavior rather than punishments for lack of filial piety. These legal rules

also pervaded multiple dynasties across the centuries and were only recently removed from China’s

legal system.59 A prominent example of this category of laws was the principle of mutual

concealment. These laws allowed, and even required, children to hide their parents from the state if

their parent had committed a crime. The basis for this law came straight from the text of The Analects

of Confucius: “The father conceals the misconduct of the son, the son conceals the misconduct of the

55
Notably, two of the other ten abominations are closely related to filial piety: parricide (murder to parents or
grandparents as opposed to a stranger which was not as harshly punished) and incest (specifically having an affair
with the spouse or concubine of one’s father, grandfather, or older brother). VICTOR CUNRUI XIONG, EMPEROR
YANG OF THE SUI DYNASTY: HIS LIFE, TIMES, AND LEGACY 136 (2006).
56
“[Lack of filial piety] means to accuse to the court . . ., to cast a spell on . . ., or to curse with bad language. . .
paternal grandparents, parents, husband’s paternal grandparents or parents; while paternal grandparents or parents
are still alive, to establish a separate family registration . . . or separate property . . . or to fail to provide sufficiently
for them . . .; during the period of mourning for parents, to arrange for one’s own marriage . . ., to make music . . .,
or to take off mourning garments and put on ordinary clothing . . .; on hearing of the death of paternal grandparents
or parents, to conceal and not to mourn the death . . .; or to state falsely that paternal grandparents or parents have
died.”). JIANG YONGLIN, THE GREAT MING CODE 18 (2004).
57
For example, during the Ming Dynasty, punishment for the Ten Abominations were unpardonable and usually
resulted in “death by slicing.” Id. at lxvi.
58
BODDE & MORRIS, supra note 50, at 411.
59
These religious exemption laws for filial piety continued to exist through the Qing (final) dynastic legal code. See
WILLIAM C. JONES, THE GREAT QING CODE 66–67 (1994).
 18

father. Uprightness is to be found in this.”60 Generally, only serious crimes committed such as

treason, sedition, or rebellion were not included under the concealment exemption.61 All other

criminal acts were “almost outside the reach of the formal criminal justice apparatus, since they

effectively denied the justice agencies the opportunity to detect and punish many crimes

committed within the privacy of the family.” 62 The evidence for the strength of this provision

points directly back to the prominent Confucian religious obligation placed upon children to

honor their parental creators. From at least the Han Dynasty onward, concealment has been

recognized by the laws of every dynasty—a period of over 2000 years.63

Beyond mutual concealment, filial piety also served as an evidentiary boost in sentencing,

even to the point of a religious exemption. These legal cases featured a principle known as “bending

law to promote sentiment” (取法深情) where filial piety could be invoked in a defendants favor. One

example from the Ming Dynasty involved a father who committed bribery to save his son from

punishment. Upon discovery of his bribes, the emperor determined not to prosecute the father for his

crime. The emperor explained, “[F]ather and son are the most intimate relatives for human beings.

With love deeply rooted in his heart, the father was so eager to save his son’s life that he ignored

what principle would not tolerate. . . . But his sentiment should be considered. Pardon him.”64 In

another Ming Dynasty case, a son petitioned to stand in for his father’s punishment (beating with

a heavy stick and banishment). When Emperor Zhu Yuanzhang got word of this son’s religious

60
THE ANALECTS OF CONFUCIUS: ZILU (论语:子路) 13.18 (trans. James Legge) CHINESE TEXT PROJECT
https://ctext.org/analects/zi-lu (last visited Jul. 15, 2021).
61
This is likely due to the fact that filial piety was intended to preserve social order and these crimes were direct
attacks at the order and stability of society. See YONGLIN, THE GREAT MING CODE, supra note 56, at 41–42.
62
MÜHLHAHN, supra note 47, at 52.
63
LIU, supra note 11, at 96–97. See also TONGZU, supra note 52, at 70 (noting that after the Tang, this principle was
expanded to include a broader range of relatives and not just parents).
64
YONGLIN, THE GREAT MING CODE AND THE MANDATE OF HEAVEN, supra note 45, at 40 quoting HUANG CHANG-
CHIEN, DA MING TAIZU GAO HUANGDI SHILU (VERITABLE RECORDS OF THE GREAT MING TAIZU) 2377–2378
(1962).
 19

devotion to filial piety, he pardoned both father and son stating, “What a beautiful thing this is!

Let’s bend the law in this case so as to promote the love between father and son, making them

good examples for the realm.”65

A final category of law dealing with filial piety was direct exemptions and accommodations

made for criminals who needed to care for an aging parent. In the event an only son’s incarceration

or even execution would leave one or both parents without support, officials would sometimes

commute criminal sentences to allow for this religious duty to be carried out. Similar to mutual

concealment, this practice in the law was common across many dynastic periods. Although these

cases represented adherence to a religious principle of ancient origin, the practice was quite regularly

used even in the last few centuries.66 Furthermore, exemptions to fulfill these obligations was not

viewed as a legal “loophole for escaping punishment,”67 but instead, as Qing Dynasty jurist Shen

Jiaben has advocated, “as a matter of morality, not punishable by law.”68

The procedure for obtaining this exemption was somewhat circuitous. Criminals accused of

serious crimes could appeal to this defense using the assize courts. These typically involved cases of

sensitive matters, such as determinations of capital punishment, and were referred to the emperor or

another elite to either offer clemency or approval of the punishment.69 An assize court could decide

the case in one of four ways: defer punishment, grant clemency out of compassion, exempt due to

filial piety, or endorse the punishment.70 When a filial piety exemption was granted, the criminal’s

sentence would be commuted, sometimes in drastic reversals. For example, during the Qing dynasty,

65
Id. at 39.
66
See BODDE & MORRIS, supra note 50, at 193.
67
Id. at 223–224.
68
HUA, supra note 9, at 37.
69
See BODDE & MORRIS, supra note 50, at 134–135. Such cases were typically reviewed in autumn to represent the
oncoming death of nature.
70
Id. at 138–139. Deferral of punishment often meant selecting one of the other three options at a future point in
time. Compassion was somewhat fluid and seems to rely more on the ruler’s discretion.
 20

a criminal who was either the sole support of parents or sole surviving descendant to carry out

ancestral sacrifices “commonly had his death penalty reduced to 40 blows of the heavy bamboo

and two months wearing of the cangue.”71 Earlier on in the Yuan Dynasty (1276-1368 CE), “a

son who killed somebody to avenge his father was sometimes forgiven by the law,” seeing his

actions as an extension of filial duty. 72

The fact that capital offenses could be reduced or even removed under conditions of filial

piety suggests the eminent status it held in Chinese society. Particularly within a strong,

centralized state such as imperial China that placed paramount importance on social order and

harmony, it almost seems paradoxical to grant such a broad exemption to the law. Of course, this

does not mean that filial piety was completely beyond the reach of the criminal justice system.

There remained limits such as when filial piety to family ran up against loyalty to the state.

Although these instances remained rare (such as the case of rebellion), they remained a point of

theoretical contention. The general view of the state was that “sovereignty took precedence, and

loyalty to the state was the crucial issue,” in moments of irreconcilable conflict. 73 Yet, from the

perspective of Confucius, “one’s first loyalty should be to one’s family.” 74 In practice, however,

there is no substantive evidence that these opposing philosophical stances ever resulted in serious

social disturbance.

This is due, at least in part, to the reciprocal nature of filial piety75 which cast all

relationships (including between sovereign and subject) in terms of obligations rather than rights.

The law was charged with protecting the state from impeding an individual’s fulfillment of

71
Id.
72
HUA, supra note 9, at 18.
73
TONGZU, supra note 52, at 74.
74
LIU, supra note 11, at 96–97.
75
JOHN H. BERTHRONG & EVELYN BERTHRONG, CONFUCIANISM: A SHORT INTRODUCTION 57 (2000) (“All too often
people believed that it meant blind obedience first to one’s family elders and then to anyone else in authority. But
this was to misunderstand the reciprocal nature of filial piety.”).
 21

religious obligation required by filial piety. It was not an individual’s right to take care of his or

her parents that kept them from punishment, but instead a mutual recognition that the moral duty

placed on them should not be interfered by the state. Likewise, those committing rebellion were

directly inhibiting the state in its obligation to provide order in society for the governed. It is the

purpose of law to preserve space for those obligations. Importantly, when religious obligations

are recognized by the state as such, they may be just as compelling for protection as rights are.

The state is not primarily protecting the people from its unsavory tendencies – as a rights-based

approach would suggest – but instead works in its own interest by allowing legal space for

religious obligations to be fulfilled. While the result looks the same as a rights-centered

approach, highlighting space for obligation encourages the populace to do much less demanding

of rights and more reminding (both themselves and the government) of their most important

responsibilities.

Beyond the contrast of rights and duties, the treatment of filial piety in pre-modern

Chinese law also draws some parallels to religious freedom laws in the West. For example, the

idea of mutual concealment is very similar to the use of priest-penitent privilege—an

accommodation granted to clergy from testifying against a criminal who has revealed

committing a crime during confession. This religious freedom principle continues to pervade

legal jurisdictions throughout Europe, North America, and areas of the Pacific. 76 Another closely

related concept is the ministerial exception in the United States. 77 Similar to the ways that filial

76
See, e.g., People v. Philips (N.Y. Ct. Gen. Sess. 1813) reported in WILLIAM SAMPSON, THE CATHOLIC QUESTION
IN AMERICA (1813) (setting forth the priest-penitent privilege as a precedent in U.S. law); Cook v. Carroll, IR 515
(1945) (setting forth the priest-penitent privilege as a precedent in Irish law). See generally Robert John Araujo S.J.,
International Tribunals and Rules of Evidence: The Case for Respecting and Preserving the Priest-Penitent
Privilege Under International Law, 15 AMERICAN UNIVERSITY INTERNATIONAL LAW REVIEW 639 (2000)
(describing the use of the priest-penitent privilege in Europe, Canada, Australia, New Zealand, and the United
States).
77
See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694 (2012) (establishing the
ministerial exception as a principle of religious liberty in federal U.S. constitutional law).
 22

piety can change exempt otherwise criminal acts from punishment, the ministerial exception

allows religious organizations exemption from antidiscrimination law. In each instance, although

the basic law seeks to generally prevent certain types of behavior, the religious autonomy of an

organization or individual is given sufficient space to function and follow the dictates of

conscience.

In review, this section has modeled the interaction between law and religion through the lens

of the Confucian concept of filial piety. It has argued that China’s history of religious freedom is

characterized by examples of accommodation and reciprocity in state respect for religious beliefs.

This analysis of law and Confucianism in pre-modern China points to several important elements of

religious freedom “with Chinese characteristics.” First, religious freedom did not emerge out of a

comprehensive philosophy of natural law and natural rights like it has in the West. Instead, Chinese

religion such as Confucianism emphasized duties over rights including the reciprocity required to

maintain the most basic relationships in society. Second, because of these origins, the law on religion

served as a tool to pragmatically meet pressing social needs and aimed to accomplish the state’s

compelling interest in stability and harmony. However, this did not fatalistically subvert religion to

the government’s aims in all cases. Although government interest served as the impetus for

accommodating and even exempting criminals from serious punishment, the reason for doing so was

to preserve the religious obligations that flowed from filial piety.

Before proceeding to modern religious freedom and China, it may be useful to point out

some limitations of analyzing the legal treatment of filial piety as a penchant for a Chinese religious

freedom model. First, the preceding analysis on law and religion in pre-modern China has focused

primarily on Confucianism. Although this is particularly useful due to its continued and widespread

influence on Chinese society, there are many counterexamples that could be drawn from other
 23

religious groups or argue that Confucianism is not representative of Chinese law and religion. For

example, internal battles within Confucianism led to countervailing perspectives on the proper place

of filial piety. Particularly the Legalists believed that filial piety, while useful, was most effective

when “subservient to absolute loyalty to the state that universal peace and prosperity can be

achieved.”78 Indeed, Legalists and Confucians eventually separated and became somewhat hostile to

one another even when they had both purported to follow the teachings of the same master. This

should indicate that the explanation given above regarding Chinese law and Confucian teachings

represents one particular (though prominent) religious and philosophical branch of Confucianism.

In addition to this, Confucianism did not have an absolute monopoly on the pre-modern

Chinese religious market. Both Daoism and Buddhism factored prominently into the development of

law and religion in China. Although they share the fluid religious nature of Confucianism, neither

Daoism or Buddhism has risen to the heights of government respect that Confucianism had

historically achieved.79 Even today, Confucianism is not one of the five state recognized religions

perhaps due to its assumed and inherent influence on China’s state and social structure. Other faiths

such as Catholicism, Protestantism, and Islam also began to emerge, yet their legal treatment in

China was somewhat skewed due to their perceived connection to foreign influence.80

With all this in mind, Confucianism in modern China remains both a dominant religious and

social force that cannot be ignored. Similar to the ways Christianity has pervaded U.S. culture and

social life, Confucianism is often bound up with what it means to be Chinese. For these reasons, it is

78
Holzman, supra note 14, at 190 (“It is only in the last great philosopher of the Golden Age, the Legalist Han Feizi,
that we find an outright condemnation of filial piety and the requirement of absolute obedience to the state rather
than to one's parents.”).
79
See Huanzhong, supra note 39.
80
See WELLENS, supra note 31 (explaining the negative past of foreign influence in China).
 24

helpful to consider how viewing Confucianism’s influence on China can inform modern religious

freedom policy and reform.

This next section strives to expand the insights from each of these scholars through

constructing religious freedom “with Chinese characteristics” in the modern Chinese state.

Confucianism, modeling as something like a civil religion,81 can provide a middle road in China’s

relations between government and religion, offers moral grounding compatible with Western

conceptions of human rights, and works to counterbalance China’s pragmatic legal system with its

emphasis on duties and obligations. Although some see modern China’s strong state control as an

anathema to free exercise of religion, previous examples of Chinese law and religion already noted

above suggest possibilities for robust religious freedom within a pragmatic legal system. As the

following sections will explain, this will require embracing Confucianist reciprocity and duty as

moral groundings for freedom of religion, thus placing core religious freedoms beyond the reach of

the state while maintaining order and harmony.

RELIGIOUS FREEDOM WITH CHINESE CHARACTERISTICS: CONTEMPORARY

APPLICATIONS AND COMPARISONS

Before going into detail on religious freedom with Chinese characteristics, it is useful to first

consider why a system of religious freedom “with Chinese characteristics” would be beneficial to

law and religion in China. There are at least two reasons to be optimistic about a Chinese flavor of

religious freedom as explained thus far. Both demonstrate that the remaining work to be done in

China’s religious freedom approach need not start from scratch.

81
See Lei Sun, The Relationship Between Confucianism and Chinese Politics, 35 JOURNAL OF LAW AND RELIGION
138, 146 (2020) (arguing that Confucianism is best seen as China’s civil religion—avoiding the extremes of an
official state religion or a secular separationist view).
 25

Domestic Case: Economic Reform

The first has been the way China’s economy has responded to capitalistic mechanisms that were put

into place during the 1980s. The years following the Cultural Revolution were a time to refine and

re-define religion in Chinese society. This period placed China on a course that moderated its radical

approach to religious freedom from the time of Mao—a course that aimed for control of religion

rather than extinction.82 Freed from the need to completely suppress religion, the decades following

the Cultural Revolution witnessed a religious revival in practice83 but not in theory.84 Although

China has indeed seen massive economic growth through “socialism with Chinese characteristics,”85

it has not delivered on what many hoped to be political reforms that would democratize its social

structure—including religious freedom. This era in China has, in some ways, looked like the

religious great awakening in the United States yet failed to manifest the significant changes in law

and policy that many expected would accompany religious revival.

82
Comp. Jiping Zuo, Political Religion: The Case of the Cultural Revolution in China, 52 SOCIOLOGICAL ANALYSIS
99, 101 (1991) (explaining the abolishment of traditional religion in China during the cultural revolution) with
Document 19, supra note 21 (viewing religion as a social reality with some potential to add value to the party’s
goals).
83
See, e.g., Yoshiko Ashiwa & David L. Wank, Making Religion, Making the State in Modern China: An
Introductory Essay, in MAKING RELIGION, MAKING THE STATE: THE POLITICS OF RELIGION IN MODERN CHINA 1
(2009) (“An astounding revival of religion has occurred in China since the late 1970s”). See generally James W.
Tong, The New Religious Policy in China: Catching Up with Systemic Reforms, 50 ASIAN SURVEY 859 (2010)
(recognizing positive steps taken in religious freedom policy following China’s late twentieth century economic
reforms).
84
This seems to be true of both Deng Xiaoping Theory or Xi Jinping Thought. See Yuting Wang, Prospects for
Covenantal Pluralism in the People’s Republic of China: A Reflection on State Policy and Muslim Minorities, 19
REVIEW OF FAITH AND INTERNATIONAL AFFAIRS 14, 14 (2021) (“The phenomenon of religious revival in China
since 1978 gave much hope for further relaxation of religious control in China to not only create a more tolerant
social environment for religious minorities, but also bolster China’s international image as it achieves greater
economic and political prowess (Tong 2010). Unfortunately, President Xi’s hardline policy that places the state
above all and the possibility of Xi to extend his tenure indefinitely have made a religious pluralistic future in China
seem utterly untenable.”); Ken Moak & Miles W. N. Lee, Deng Xiaoping Theory: Socialism with Chinese
Characteristics, in CHINA’S ECONOMIC RISE AND ITS GLOBAL IMPACT 91–115 (2016) (overviewing the major
aspects of Deng Xiaoping Theory in economic and social reform).
85
Also referred to as “state capitalism” or “Beijing consensus.” See Yang Yao, The Political Economy Causes of
China’s Economic Success, in CHINA’S 40 YEARS OF REFORM AND DEVELOPMENT: 1978–2018 78–79 (Ross
Garnaut, et al., eds.) (2018).
 26

Yet significant changes did occur in China’s economy. During this time, China’s leaders

were willing to accept capitalism, a concept heavily associated with the West, on the grounds they

could frame it within their own socialist context.86 In a short time, China was witnessing vast

economic improvements in the decades following 1980. China’s proportion of population living in

poverty fell from 53% to 8% in just 20 years after 1981.87 Additionally, it has sustained high rates of

economic growth in the four decades since Deng Xiaoping’s reforms: nearly 8% annual average

growth in GDP per capita (regularly placing China in the top tier of fastest growing economies in the

world).88 China’s modified approach to the Western model of capitalism has also generated new

discussion in the literature of economic growth theory to account for China’s meteoric rise as an

economic superpower.89

Among the explanations given for its rapid growth, Confucian aspects of Chinese culture has

consistently arisen in the economic literature.90 For example, one set of economics scholars have

pointed out the influence of filial piety on both high savings rates and human capital investment.91

What is particularly interesting in their analysis has been the different mechanisms behind China’s

economic growth. For instance, their research demonstrates that although human capital is vital to the

economic growth of both China and Western democracies, China’s reason for investing in human

86
For Deng Xiaoping, this meant viewing socialism and capitalism as “two peas in the same pod” because they each
required planning whether by the government or by market forces. Moak & Lee, supra note 84, at 91–92.
87
However, economists have also discussed the inequality present in this poverty alleviation. Martin Ravallion &
Shaohua Chen, China’s Uneven Progress Against Poverty, 82 JOURNAL DEVELOPMENT ECONOMICS 1, 2 (2007).
88
GDP per capita growth (annual %) – China (1961–2020), THE WORLD BANK
https://data.worldbank.org/indicator/NY.GDP.PCAP.KD.ZG?locations=CN&most_recent_value_desc=true (last
visited Jul. 21, 2021).
89
See Yang Yao, supra note 85 (suggesting ways that China has diverged from the neoliberal model of economic
growth); see also Saite Lu, et al., A Theory of Economic Development and Dynamics of Chinese Economy, 86
ECON. MODELLING 69 (2020) (accounting for China’s recent slowing growth with an adjusted growth model).
90
See, e.g., Yang Yao, supra note 85, at 79–80; Yvonne Chen, et al., Confucianism, Social Norms, and Household
Savings Rates in China (Lee Kuan Yew School of Public Policy Research Paper No. 17-14, 2017)
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2996310.
91
See Chen, et al., supra note 90 (pointing out the conflicting ways that filial piety can boost economic growth
through encouraging human capital investment but also decrease growth through providing parents an incentive not
to increase household savings).
 27

capital is viewed as a pragmatic rather than altruistic decision. Whereas families in the United States

may not expect any future financial benefits from providing their children with an education, China’s

parents fully anticipate their children to repay the debt they are owed.92 At least in the realm of

economic reform, this research seems to suggest that aspects of Confucianism, such as filial piety,

can serve as an alternative method for achieving the same goals as Western liberal models. Likewise,

religious freedom reform has the potential to benefit in a similar manner. While the methods may not

be the same, China’s economic reforms prove that there is more than one way to produce a

flourishing society.

Comparative Case: Vietnam and Uzbekistan

The case for religious freedom with Chinese characteristics is further bolstered when looking at other

examples of religious freedom reform.93 In recent years, both Vietnam and Uzbekistan, two countries

from the Asia region, have shown marked progress in religious freedom reform. While a host of

factors could likely be cited, each country has shown resistance to comprehensive reforms suggested

by foreign governments, preferring an organic, incremental, and pragmatic approach. In Vietnam,

progress has been a slow march over the past several decades. The signs of progress may appear

sporadic to international actors because progress has often been unrelated to foreign policy initiative.

This isn’t surprising given the “ritualistic response” of Vietnamese officials rejecting foreign

determinations of religious freedom violations.94 This continued back and forth between foreign

countries and Vietnamese officials ultimately revealed that they each operating with a

92
See Yang Yao, supra note 85, at 7–10.
93
Although not discussed here, another example that could be offered is the empire of Genghis Khan and his policy
of religious freedom for those he conquered which relied on pragmatic considerations. See JACK WEATHERFORD,
GENGHIS KHAN AND THE QUEST FOR GOD: HOW THE WORLD’S GREATEST CONQUEROR GAVE US RELIGIOUS
FREEDOM (2016).
94
John Gillespie, Human Rights as a Larger Loyalty: The Evolution of Religious Freedom in Vietnam, 27 HARVARD
HUMAN RIGHTS JOURNAL 108, 109 (2014).
 28

“fundamentally different understanding of religious freedom.”95 As opposed to universalist

approaches to human rights, the idea of Dai Doàn Kết (“DDK”) (Great Unity) pervades

Vietnamese national identity and informs government policy on religious freedom. 96

While this conflicted understanding of human rights continues at a philosophical level, 97

the progress in Vietnam continues forward through incremental steps. Even acknowledging

deficiencies in Vietnamese religious freedom, both national and international bodies have

remarked on the steady progress made in Vietnam’s religious freedom. 98 One recent example

was local government efforts to restore housing to displaced Hmong Christians in Dam Rong

District of Lam Dong Province who had been evicted due to their religious beliefs. 99 No specific

explanation was given as to the local government’s motive, yet it was apparent that this

assistance was in harmony with the national government’s conception of the DDK spirit. 100 As

noted above, there is still space for reconciling differences between Vietnamese conceptions of

religious freedom and the criticism of foreign nations. Experience thus far has demonstrated that

Vietnam would respond poorly to continued international pressure. The experience of Vietnam

instead suggests an expectation of incremental progress rather than a panacea. In addition to this,

95
Id.
96
Id. at 110–111.
97
See id. at 112 n. 31.
98
See, e.g., Report of the Special Rapporteur for Freedom of Religion or Belief, Mission to Vietnam (21 to 31 July
2014) ¶¶13–14 U.N. Doc. A/HRC/28/66/Add. 2 annex (Jan. 30, 2015); Vietnam 2020 International Religious
Freedom Report, U.S. STATE DEPARTMENT 1 (May 12, 2021) https://www.state.gov/wp-
content/uploads/2021/05/240282-VIETNAM-2020-INTERNATIONAL-RELIGIOUS-FREEDOM-REPORT.pdf
(“Religious leaders across the country reported some improving conditions compared with prior years, such as better
relations between unregistered religious groups and local authorities, while also reporting incidents of harassment,
including police questioning and brief periods of detention.”). Surprisingly, the U.S. State Department has regularly
rejected the recommendation of the U.S. Commission on International Religious Freedom to designate Vietnam as a
“Country of Particular Concern.”
99
USCIRF Encourages Religious Freedom Progress on Vietnam National Day, U.S. COMMISSION ON
INTERNATIONAL RELIGIOUS FREEDOM (Sep. 3, 2020) https://www.uscirf.gov/news-room/releases-statements/uscirf-
encourages-religious-freedom-progress-vietnam-national-day.
100
James W. Carr & Glenn Grothman, Hopes and Fears for Religious Freedom in Vietnam, The Hill
https://thehill.com/blogs/congress-blog/religious-rights/512929-hopes-and-fears-for-religious-freedom-in-
vietnam?rl=1 (last visited Jul. 21, 2021) (“The regional government’s plans include roads, a medical clinic, a
community center, and other facilities. The national government has supported these efforts.”).
 29

common ground between Western human rights standards and Great Unity (or, in China’s case,

Confucian values) should continue to be searched, such as the case in Dam Rong District.

Like Vietnam, Uzbekistan has also seen positive religious freedom developments in

recent years. Beginning in 2020 and continuing into 2021, Uzbekistan was removed from

USCIRF’s CPC list and placed on its “Special Watch List” for the first time since 2005. 101

Beginning in 2020, international experts were assembled to support Uzbekistan in composing a

Draft Law reforming religious freedom in the country. Among other things, the Draft Law was

praised for several reforms “such as the reduction of the required minimum number of believers

to create a religious organization, the removal of the ban to wear religious attire in public and the

requirement that liquidation of a religious organization be pronounced by a court instead of

administrative bodies.”102 Yet concerns remained. As two scholars involved in the reform efforts

explained:

Despite substantial international assistance, the 2020 draft still contains a number of
provisions restricting religious freedom and that present significant obstacles for the
development of covenantal pluralism. It is tempting to think that the abovementioned
[deficiencies] are inspired by the state’s aim to control the religious sphere as much as
possible. Instead, our experiences and interactions with Uzbek officials, scholars,
religious leaders, and civil society suggest that, at least partly, this regulatory framework
correlates with Uzbek cultural attitudes, especially given the Uzbek perspective on
interreligious harmony and religious tolerance.103
They go on to explain that international experts should “keep in mind this cultural context while

providing assistance in Uzbekistan,” rather than simply “imposing Western models of religion-

state relations.”104

101
Annual Report of the United States Commission on International Religious Freedom, U.S. COMMISSION ON
INTERNATIONAL RELIGIOUS FREEDOM 6 (May 2005) https://www.uscirf.gov/sites/default/files/2021-
04/2005%20Annual%20Report.pdf.
102
Uzbekistan Joint Opinion on the Draft Law “On Freedom of Conscience and Religious Organizations,”
EUROPEAN COMM’N FOR DEMOCRACY THROUGH LAW (VENICE COMM’N) 4 (Oct. 12, 2020)
https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2020)002-e.
103
Elizabeth A. Clark & Dmytro Vovk, Legal Reform in Uzbekistan: Prospects for Freedom of Religion or Belief
and Covenantal Pluralism, 18 REVIEW OF FAITH AND INTERNATIONAL AFFAIRS 35, 45 (2020) (emphasis added).
104
Id.
 30

No doubt, it has been the cooperation of Uzbekistan’s President Mirziyoyev and his

government that has made the largest difference in accepting international help. They have

embraced legal reforms in many areas outside of religious freedom and appear open to continued

help. However, their reception of foreign assistance comes with a request that their “cultural

context also helps to shape priorities for international aid to Uzbekistan in the freedom of

religion or belief sphere.”105 Among other things, this includes recognition of Central Asia’s

historical context. For instance, Akmal Saidov, Director of Uzbekistan’s National Human Rights

Centre, spoken recently at the 27th Annual International Law and Religion Symposium about

Uzbekistan’s religious freedom developments. The majority of his remarks outlined the history

of religious groups in Uzbekistan and ways that religious tolerance and regulation informed the

nation’s post-Soviet heritage.106

His decision to give a historical overview reveals the need in Central Asia, like China, to

first be understood on their own terms. For him and others, this background helps to inform some

of the seeming setbacks in the Draft Law according to international law standards. One example

is ongoing concerns to control radical Islamic groups and Afghanistan.107 Uzbekistan and other

nations in Central Asia are constantly grappling with surrounding threats of radical Islamic

movements and often use religious freedom restrictions to curb some of these security concerns.

105
Id.
106
27th Annual Law and Religion Symposium: Breakout Session 2, “Religious Freedom in Central Asia: Rights and
Responsibilities”, INTERNATIONAL CENTER FOR LAW AND RELIGION STUDIES (00:15:41 to 00:22:29) (Oct. 5, 2020)
[hereinafter Symposium] https://www.iclrs.org/annual-international-law-and-religion-symposium/27th-annual-
international-law-and-religion-symposium-2/ (“we have to look at our area [Central Asia] a little differently because we
have to take into account historical tendencies.”).
107
Id. at 00:34:40 to 00:40:21 (arguing that European countries don’t have an informed opinion on the appropriate
security measures in Uzbekistan and the local situation that may fall outside the scope of certain international human
rights standards); see Vitaly V. Naumkin, Militant Islam in Central Asia: The Case of Islamic Movement in
Uzbekistan, BERKELEY PROGRAM IN SOVIET AND POST-SOVIET STUDIES (2003)
https://iseees.berkeley.edu/sites/default/files/shared/2003_06-naum.pdf (explaining the presence of the Islamic
Movement of Uzbekistan (IMU) and other radical groups that pose a security threat); see also Mariya Y.
Omelicheva, The Ethnic Dimension of Religious Extremism and Terrorism in Central Asia, 31 INTERNATIONAL
POLITICAL SCIENCE REVIEW 167 (2010).
 31

International experts are inclined to see these dangers as overstated. Each side likely has valid

claims.108

In either case, however, Uzbekistan leaders have demonstrated a need for the

international community to demonstrate familiarity with their nation’s heritage before coming to

them with purported solutions. As stated about the Central Asia region generally, “[t]he Central

Asian authorities have employed the rhetoric of democracy to boost their international and

domestic image but have also repeatedly stated that they would promote their own ‘special’ types

of democracy informed by the specific circumstances of their countries’ development.”109 By

another name, Central Asian countries like Uzbekistan are pushing for democracy, including

religious freedom, with Central Asian characteristics.

Both Vietnam and Uzbekistan illustrate that religious freedom reform cannot simply

throw out what foreign governments determine to be “undemocratic” values tied to national

consciousness. Instead, especially working within particularly authoritarian governments,

national values and heritage that will appeal to the people should be searched for compatibility

with international human rights norms. These should be the first steps taken to enable

government leaders to witness the wealth of social and economic benefits that tend to accompany

religious freedom, urging continued reform and development.110 Likewise, as has already been

108
Compare Symposium, supra note 106, at 00:34:40 to 00:40:21 (detailing the necessity of heightened security
measures on religious groups as a needful part of the Draft Law), with Knox Thames, A Real Opportunity for
Religion Law Reform in Uzbekistan, THE DIPLOMAT (Oct. 16, 2020) https://thediplomat.com/2020/10/a-real-
opportunity-for-religion-law-reform-in-uzbekistan/ (advocating the removal of rigid religious regulation
requirements in spite of valid security concerns).
109
Omelicheva, supra note 107, at 180.
110
Brian Grim and Roger Finke have produced multiple studies highlighting these salutary effects in the United
States and other countries. See, e.g. BRIAN J. GRIM & ROGER FINKE, THE PRICE OF FREEDOM DENIED: RELIGIOUS
PERSECUTION AND CONFLICT IN THE TWENTY-FIRST CENTURY (2011); see also Brian J. Grim, et al., Is Religious
Freedom Good for Business? A Conceptual and Empirical Analysis, 10 INTERDISCIPLINARY JOURNAL OF RESEARCH
ON RELIGION 1 (2014); Brian J. Grim, The Unseen Economic and Social Impacts of American Faith, DESERET NEWS
(May 12, 2021) https://www.deseret.com/faith/2021/5/12/22429166/the-unseen-economic-social-impact-of-
american-faith-brian-grim-religious-freedom-business-foundation.
 32

shown, China’s heritage of Confucianist values have modeled historical compatibility between

its pragmatic legal system and government respect for religious freedom.

MODERN RELIGIOUS FREEDOM WITH CHINESE CHARACTERISTICS

The previous sections have provided evidence from a variety of sources to inform and culminate

in a modern model of religious freedom with Chinese characteristics. Part II offered a historical

look at success of religious freedom in the way Confucianism was accommodated in pre-modern

China. Part IIIA added current economic reforms to show modern day Chinese reform success in

a field outside of law and religion. Part IIIB then presented religious freedom successes in

Vietnam and Uzbekistan, both of which prove the virtue of pragmatic and organic religious

freedom reform. This section will now synthesize each of these perspectives (historic, cross-

disciplinary, and comparative) into a model of religious freedom with Chinese characteristics,

concluding with a comparison to the Western model.

As explained at the beginning of this article, an adequate model for religious freedom

with Chinese characteristics must account for both law and religion in China. China’s fluid

religious ecosystem is foregrounded with a pragmatic legal system run by a strong state. As

historical treatment of filial piety demonstrates, however, the right ingredients can produce

satisfactory results. One key feature of robust religious freedom in China anciently was

grounding filial piety in morality, seen as a feature of public life that could be taken beyond the

reach of the government. Although not strictly Western like natural law or explicitly divine in

origin, the Confucian ideal of ren or “humaneness” presents a good beginning. 111 This Confucian

111
Several other scholars have already recommended this approach. See W. COLE DURHAM JR. & BRETT G.
SCHARFFS, LAW AND RELIGION: NATIONAL, INTERNATIONAL, AND COMPARATIVE PERSPECTIVES 83–84 (2019);
QIANFAN ZHANG, HUMAN DIGNITY IN CLASSICAL CHINESE PHILOSOPHY: CONFUCIANISM, MOHISM, AND DAOISM
45–99 (2016).
 33

concept emphasizes the importance of reciprocity and places obligations rather than rights in the

foreground. Although both are necessary ingredients in a successful society, the rhetoric of rights

is likely to be far less compelling to the state than an insistence on space to fulfill religious

obligations.

With this in mind, models of religious freedom need not be identical in their

philosophical or moral underpinnings; rather each must maintain some connection to the concept

of human dignity. Human dignity has been explained as both the lodestar and telos of human

rights and religious freedom. This is because human dignity can serve as “a basis for finding

common ground regarding human rights” and “provides an approach for building bridges

between various normative justifications for human rights.” 112 In this vein, one may view

Chinese pragmatism in human rights as defensible if there is sufficient connection to respect for

human dignity. Using the Confucian concept of ren may be the needed connection between

human dignity and pragmatic concerns of the CCP to promote a robust model of religious

freedom.

This naturally leads to query how a moral grounding of human rights in ren can function

within a pragmatic legal system. In China today, it is safe to say that pragmatism legally can be

defined as the goals of the Chinese Communist Party. Like Vietnam, it is clear that at least one

feature of this has been national unity. 113 Additionally, the Communist Party is very conscious of

China’s place on the international stage, which has given rise to social and economic

112
PUNTA DEL ESTE DECLARATION ON HUMAN DIGNITY FOR EVERYONE EVERYWHERE: SEVENTY YEARS AFTER THE
UNIVERSAL DECLARATION OF HUMAN RIGHTS, INT’L CTR. FOR L. AND RELIGION STUD. §2 (2018).
113
See Chris Buckley, Xi Jinping Thought Explained: A New Ideology for a New Era, NEW YORK TIMES (Feb. 26,
2018) https://www.nytimes.com/2018/02/26/world/asia/xi-jinping-thought-explained-a-new-ideology-for-a-new-
era.html.
 34

developments such as the massive Belt and Road Initiative.114 These considerations have

everything to do with religious freedom. Recent and strong criticism of Xinjiang’s treatment of

Uyghurs has brought international criticism to China with calls to reform and change. What is

clear, however, is that a country building on a past of foreign humiliation is not going to be eager

to acquiesce to their demands. Repeatedly, China has denied and fired back accusations to

foreign nations who have accused them of genocide. 115

None of this is to suggest that naming and shaming does not have an appropriate place in

international engagement. Rather, that method cannot be the only or even primary measure of

attempts for religious freedom reform in China. The main point of engagement may instead

become searching out and promoting those features of religion in China that are compatible with

China’s goals for the nation. This would then be followed with a two-step translation into greater

religious freedom—the first step ideological and the second pragmatic. Ideologically,

international advocates of religious freedom can come to China with recommendations presented

in the framework of responsibilities rather than rights. Like has been shown with filial piety, the

government was eager to step in and ensure fundamental religious obligations could be met by

devout believers. Religious rights have a strong foreign connotation for the Chinese, whereas the

idea of religious obligations is far more familiar. The second step adds an additional layer of

pragmatism by demonstrating that such obligations, while obviously benefitting the individual,

will also benefit the state as well. In practice, there are already several unintentional examples of

pragmatic improvements to religious freedom.

114
See Action Plan on the Belt and Road Initiative, STATE COUNCIL OF THE PEOPLE’S REPUBLIC OF CHINA
http://english.www.gov.cn/archive/publications/2015/03/30/content_281475080249035.htm (last updated Mar. 30,
2015) (explaining China’s global infrastructure development plan).
115
See, e.g., China Sanctions U.S. Religious Freedom Officials, U.S. COMMISSION ON INTERNATIONAL RELIGIOUS
FREEDOM (Apr. 1, 2021) https://www.uscirf.gov/news-room/uscirf-spotlight/china-sanctions-us-religious-freedom-
officials.
 35

One prime example has been the leniency granted to certain funerary practices in China.

CCP officials had been resistant to ancestor worship practices in burial, viewing it as a

“superstition” that needed to be destroyed. 116 However, China has unintentionally bolstered

efforts to continue this religious ritual making the Qingming Festival117 a national holiday.

Originally, this “was motivated by economic rationality – to spread the benefits and reduce the

stress on the country’s transport and tourist infrastructures during the weeklong Labor Day and

National Day holidays.”118 However, this ended up encouraging the very superstitious practices

that Chinese officials had been bent on removing from public life. In truth, it was the economic

rationale driving the reforms where religion was merely an incidental beneficiary, showing “how

economic rationalization and cultural [and religious] revival could sometimes go hand in

hand.”119

Another example is China’s willingness to allow shrines and places of worship to local

deities designated as part of the “popular religious sphere.” This invented category of religious

categorization allowed China to support widespread folk religion and practice from Taiwan into

China. Once again, the purpose behind this expansion of religious freedom originated in a more

fundamental goal of the Chinese government:

The Chinese government has been actively using popular religious ties between the
mainland and Taiwan as part of their effort to bolster the Taiwanese people’s ties to the
mainland (where all of the popular religious deities originated) and to enhance their sense
of Chinese national and cultural identity (i.e. part of the United Front strategies aiming at
the eventual reunification of mainland China with Taiwan).120

116
GOOSSAERT & PALMER, supra note 40, at 233–237.
117
In English, known as the Grave-Sweeping Festival, this is a day to honor ancestors by sweeping graves, burning
incense, or making offerings on their behalf.
118
Id. at 237.
119
Id.
120
ADAM YUET CHAU, RELIGION IN CHINA: TIES THAT BIND 182 (2019).
 36

Finally, it is also worth noting that religious exemption is also within the realm of possibility if

pragmatic considerations are strong enough. The idea of benign constitutionalism allows for

constitutional violations in circumstances where doing so both “contributes to the national social

and economic development” and “is consistent with the fundamental interest of the state.” 121 If

religious freedom interests are presented in a way that aligns with the broad development

objectives of the CCP, a pragmatic case can be made and possibly championed by China’s

government officials.

CONCLUSION

Drawing from historical, cross-disciplinary, and comparative perspectives, this article has

offered a model for religious freedom with Chinese characteristics. This has led to the suggestion

that the Western liberal models of religious freedom, grounded in a theory of natural law and

natural rights, need not be the only hope for robust religious freedom in China or other nations.

Using Confucian concepts such as ren to ground China’s human rights program within human

dignity, religious freedom with Chinese characteristics does not rely upon but instead works

within China’s pragmatic legal system to hollow out space for fulfilling religious obligations.

With China’s Confucian approach working in tandem with their legal pragmatism, aid from

foreign bodies can better support and advocate religious freedom reform in China. Importantly,

this orients religious freedom on responsibilities rather than just rights. While still far from

perfect, the ideological weight of Confucianism has the potential to place important aspects of

religious autonomy outside of state control while still promoting the goals of social order and

harmony.

121
FENG LIN, CONSTITUTIONAL LAW IN CHINA 290–291 (2000).
 37

Importantly, China’s model may be useful for other Asian nations with authoritarian

governments that tend to emphasize community obligations over individual rights—particularly

in the emphasis on reciprocity and ren. Additionally, future research may also consider ways that

religious freedom in the West can benefit from more pragmatic approaches to issues that have

proved ideologically intractable, just as China’s religious freedom can benefit from ideological

grounding in line with pragmatic national values. Where a heavy Western focus on ideology in

religious freedom fails to resolve complicated disputes with other important social values, there may

be instances where the Chinese model of pragmatism is useful. The same may also be true of

focusing on responsibilities before rights. The final analysis suggests that models of religious

freedom will continue to mold and shape as national governments navigate the competing

concerns between freedom of religion and other important interests.