Restore the Truth: Traditional Chinese Law and Its Distortion by the Western Knowledge System

Abstract

Traditional Chinese law has been described as a “stagnant” system, in contrast to the West's “progressive” formal-rational law. Two primary reasons for this perception are China's nineteenth century geopolitical descent and the Orientalist prejudices not only constructed by Westerners, but internalized by the non-Westerners that followed. Thus Chinese law came to be viewed as not worth learning. Admittedly, in traditional Chinese society, there was no consciousness of “rights,” but this does not mean that property rights, for example, have never been protected. Chinese society has long perceived itself as bound by duty. In the minds of emperors and the intelligentsia, an ideal society was a harmonious one, and therefore supposedly without lawsuits. However, conflicts and struggles do, of course, exist in Chinese society. In general, criminal cases (zhong'an) were judged by magistrates (difang fumuguan), while civil disputes (xishi) were usually settled through mediation. This is different from the adversary system of the West. This study argues that, although traditional Chinese law does indeed possess a substantive method for protecting individuals’ “rights”—a method that takes a moral and instructive approach to protecting “rights”, mainly through punishing wrongdoers—under the hegemony of the Western knowledge system, the progressive nature of traditional Chinese law has yet to be uncovered.

Keywords:

• traditional Chinese law
• civil justice
• duty/obligation
• minor matters
• property rights

Acknowledgements

An earlier draft of this paper, “Exercises of Right in a Duty-Bound Society: With a Glimpse into the Intellectual Property Rights in Traditional Chinese Law,” was presented at the Fifth Renda (Renmin University of China)—Fuda (Fu Jen Catholic University) Teachers’ Colloquium, Renmin University of China, Beijing, September 10–13, 2014. The author thanks Professor Chu Huijuan for valuable comments. Precious suggestions from the anonymous reviewers of International Critical Thought are also highly appreciated.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on Contributor

Xie Hongren (following Chinese practice, the surname, Xie, is placed first) gained his PhD from the Sociology Department, Binghamton University, State University of New York (SUNY). He is currently an associate professor in the Department of Sociology, Fu Jen Catholic University, Taipei, Taiwan, China. His specialties are development studies, modern world-systems theory, and intellectual property rights. His articles include those published in Chinese journals, such as Studies on East Asia, Social Analysis, and Policy Researches, as well as English journals including Journal of Contemporary Asia, Journal of Contemporary China, Perspectives on Global Development and Technology, and Review of Radical Political Economy. He recently published his first book in Chinese: The End of Development Studies: The 21st-Century World Economy in the Wake of the Rise of the BRICS (Taipei: Wunan Publishing Co., 2013).

Notes

¹In fact, many scholars believe that the traditional Chinese legal system lacked the capacity to adjust itself to social changes. For example, Chen Huixin points out,

Traditional Chinese law is supported by the three-guides-five-virtues [sangang wulun]. However, for some reason, or simply because of its inability to adjust itself to the challenge of social change, this system lost responsiveness and the ability to correct matters, and finally became useless or ineffective. (Chen 2007, 8, under “Preface”)

²The term silicanjun appears during the early Northern Song for the first time in Chinese history. This position, a local-level one, existed throughout the Song dynasty. The Song's emperors developed the innovative functions of the silicanjun step by step, building a better institution for staff selection and assessment. An important method for evaluating the silicanjun is to calculate how many cases were settled and whether cases were fairly judged. In the Song dynasty, the silicanjun institution was a rather integrated one, particularly in the sense of avoiding conflicts of interest, supervising, and building a system of rewards and penalties. All in all, silicanjun can not only be seen as indicative of the maturity of the Song legal system, but can also be treated as a great step toward specialization in traditional Chinese law (Chen 2009).

³This official position, xianwei, was immediately below the head of the county. It originated from around the Qin and Han dynasties. The main duty of xianwei was public security. Generally, a large county had two xianwei while small counties had only one such position.

⁴In the Song dynasty, the “die” (an official certificate) was a legal document exchanged between the same or with higher-ranking levels of government. In the procedure of the first test, the officials were asked to apply twice for the “die.” The first request occurred on the examination day, when officials applied to a higher level of government for a second test. Second, after the test, the officials needed to report the conditions and draw their conclusions.

⁵Basically, the criminal code is statutory law in the traditional Chinese legal system. It is an absolutist system that leaves little room for the free adjudication of rights.

⁶This subtitle “representation and practice” is partly borrowed from Philip C. C. Huang's book, Civil Justice in China: Representation and Practice in the Qing (Philip C. C. Huang 2007).

⁷But the merits of mediation should not be overemphasized. In fact, with its substantial population and expansive territory, China has had relatively few official resources. In such circumstances, it seems reasonable to develop a mediation system comprised of family or clan leaders to deal with minor matters. This institution may fit the Chinese situation. But for various reasons, it may fail to provide justice. For instance, persons in the role of mediator often hold a high rank in township politics. This allows them to use repressive methods so that the persons involved reluctantly accept a compromise that is not quite just. In addition, under the ideal of a so-called harmonious spirit, the standard of justice may not be fully addressed. In short, although the institution of mediation undeniably has its advantages, we need to be aware of its possible drawbacks as well.