Chinese law
Chinese law is one of the oldest legal traditions in the world. The core of modern Chinese law is based on Germanic-style civil law, socialist law, and traditional Chinese approaches. For most of the history of China, its legal system has been based on the Confucian philosophy of social control through moral education, as well as the Legalist emphasis on codified law and criminal sanction. Following the Xinhai Revolution, the Republic of China adopted a largely Western-style legal code in the civil law tradition. The establishment of the People's Republic of China in 1949 brought with it a more Soviet-influenced system of socialist law. However, earlier traditions from Chinese history have retained their influence.
Chinese legal tradition
Origin
The word for law in classical Chinese was fǎ. The Chinese character for fǎ denotes a meaning of "fair", "straight" and "just", derived from its water radical. It also carries the sense of "standard, measurement, and model". Derk Bodde and Clarence Morris held that the concept of fǎ had an association with yì. Yan Fu, in his Chinese translation of Montesquieu's De l'esprit des lois published in 1913, warned his readers about the difference between the Chinese fǎ and Western law: "The word 'law' in Western languages has four different interpretations in Chinese as in lǐ, lǐ, fǎ and zhì.A term which preceded fǎ was xíng, which originally probably referred to decapitation. Xíng later evolved to be a general term for laws that related to criminal punishment. The early history Shang Shu recorded the earliest forms of the "five penalties": tattooing, disfigurement, castration, mutilation, and death. Once written law came into existence, the meaning of xíng was extended to include not only punishments but also any state prohibitions whose violation would result in punishments. In modern times, xíng denotes penal law or criminal law. An example of the classical use of xíng is Xíng Bù for the legal or justice department in imperial China.
Time periods
The concept of state oversight persisted throughout the imperial period, into the republican period, and can still be seen acting today.Unlike many other major civilizations where written law was held in honor and often attributed to divine origin, law in early China was viewed in purely secular terms, and its initial appearance was greeted with hostility by Confucian thinkers as indicative of a serious moral decline, a violation of human morality, and even a disturbance of the total cosmic order. Historically, the people's awareness and acceptance of ethical norms was shaped far more by the pervasive influence of custom and usage of property and by inculcating moral precepts than by any formally enacted system of law. Early emperors embraced the Legalist ideal as a way of exerting control over their large, growing territory and population. This process was integrated with traditional Chinese beliefs in the cosmic order. Behavior fitting within the responses set by fǎ was the correct behavior. Xíng states the potential costs to the individual of exceeding them and imposes penalties for these actions.
The imperial period was characterized mainly by the concept of law serving the state as a means of exerting control over the citizenry. In the late Qing dynasty there were efforts to reform the law codes by importing German codes with slight modifications. This continuous effort was amplified in the republican period resulting in the Provisional Constitution of 1912 which included the idea of equality under the law, rights for women, and broader rights for citizens in regard to the government. The onset of the communist period rolled back the development of individual rights with the primary concept of law returning to that of a tool of the state. The Cultural Revolution devastated the ranks of intellectuals and legal professionals. It took until 1982 for the idea of individual rights to reemerge as a significant influence on Chinese law.
The current constitution was created in 1982. Article V states that no organization or individual is above the law and Article III makes the People's Congresses and state administration responsible to the people, paving the way for later efforts to allow enforcement of individual rights. Passage of the Administrative Litigation Law of 1987 created legal recourse for individuals from arbitrary government action which was previously unavailable. Despite the deep-seated norm against legal proceedings, litigation in the Chinese courts has increased dramatically in recent years. The continuing weakness of courts, resulting from their dependence on the local government for financial support and enforcement, undermines the effectiveness of these remedies. This has also begun to change with China's initiatives to increase legal training and the professionalism of the judiciary.
One avenue of individual appeal from government action which is the custom of xìnfǎng 信访 or petitions by citizens to the individuals officials for change. The continuing wide use of xìnfǎng reflects the fact that many officials are still able to avoid legal sanctions and the underlying avoidance of the legal system, as well as the personal ability of officials to personally intervene to change unjust results. Recently xìnfǎng has been institutionalized to some extent with the central government mandating that every level of administration establish a xìnfǎng office to handle petitions and report them up to high levels. Scholars have noted that xìnfǎng today functions more as an informational collection system for the government than an effective review mechanism.
The Han dynasty retained the basic legal system established under the Qin but modified some of the harsher aspects in line with the Confucian philosophy of social control. The Han dynasty formally recognized four sources of law: lǜ, lìng, kē and bǐ, among which lìng has the highest binding power over the other three. Most legal professionals were not lawyers but generalists trained in philosophy and literature. The local, classically trained, Confucian gentry played a crucial role as arbiters and handled all but the most serious local disputes.
During the Qing dynasty, criminal justice was based on extremely detailed Great Qing Legal Code. One element of the traditional Chinese criminal justice system is the notion that criminal law has a moral purpose, one of which is to get the convicted to repent and see the error of his ways. In the traditional Chinese legal system, a person could not be convicted of a crime unless he has confessed. This often led to the use of torture, in order to extract the necessary confession. These elements still influence modern Chinese views toward law. All capital offenses were reported to the capital and required the personal approval of the emperor.
Confucianism and Legalism
Both theories were developed during the Spring and Autumn period and the Warring States period, a time that saw the most impressive proliferation of new ideas and philosophies in Chinese history. While both theories call for governmental hierarchy, they differ drastically in their views of human potential and the preferred means to achieve political order. Both have influenced and continue to influence the development of cultural, social, and legal norms in China.There was no civil code separate from the criminal code, which led to the now discredited belief that traditional Chinese law had no civil law. More recent studies have demonstrated that most of the magistrates' legal work was in civil disputes, and that there was an elaborate system of civil law which used the criminal code to establish torts.
Confucianism
Confucianism is the idea that human beings are fundamentally good. With this optimistic view on human potential, Confucius advocates for ruling through li – traditional customs, mores, and norms – which allow people to have a sense of shame and become humane people with good character, rather than through government regulations and penal law. The goal is that people will internalize the acceptable norms and only take proper actions. This will not only lead to a harmonious social order, but it will also provide the additional benefit of improving an individual's inner character and the overall quality of the society. In contrast, codified laws require external compliance, and people may abide by the laws without fully understanding the reason for compliance. Confucius did not advocate for the elimination of formal laws. Rather, according to Confucianism, law should be viewed as a subsidiary tool primarily to be used against determined wrongdoers who cannot be affected by moral instruction.What lies vital to Confucius' theory is the willing participation by citizens of the society to search for commonly accepted, cooperative solutions. There must also be grounds or bases upon which commonly acceptable solutions can be arrived at. Li is commonly understood as a set of culturally and socially valued norms that provide guidance to proper behaviors that will ultimately lead to a harmonious society. These norms are not fixed or unchangeable over time but rather a reflection of what is accepted at a particular time in a particular context. When conflicts arise, the li have to be applied and interpreted to produce a just result and restore the harmony of the society. However, in the absence of any procedural safeguard afforded by codified laws, interpretation of li is subject to abuse.
Recognizing that people in a society hold diverse interests, Confucius charges the ruler with the responsibility to unify these interests and maintain social order. This is not done by dictatorship but by setting an example. Therefore, a ruler needs not to force his people to behave properly. Instead, the ruler needs only to make himself respectful, and the people will be induced and enlightened by his superior virtues to follow his example. The ruler must know and understand the li to be able to create solutions to conflict and problems the society faces. As the people are to follow the moral standards and example set by the ruler, to a large extent, the quality of the ruler determines the quality of the political order.
Although discourse in Confucianism considered law as an inferior means of control when compared to morality and ritual, law in Confucian China was in practice overwhelmingly penal.
The incorporation of the essentials of Confucianist li into legal codes occurred with this Confucian conception dominating ancient Chinese law. Ch'ü concludes that the gradual process of Confucianisation of law was the most significant development in the legal system of China prior to 20th century modernization. The line between ruling by moral influence and ruling by punishment was not always clearly delineated. For example, li could be enforced by moral influence and legal means. The metamorphosis of li into law depended on its widespread and unvaried acceptance by society.
Although the codification of law was largely completed by the Tang Code of CE 624, throughout the centuries the Confucian foundations of the Tang Code were retained, and indeed with some aspects of it strengthened by the later dynasties. The Great Ming Code, which was a model for the Qing code, covered every part of social and political life, especially family and ritual, but also foreign relations and even relations of earthly life with the cosmos.
The Confucian notion that morality and self-discipline was more important than legal codes caused many historians, such as Max Weber, until the mid-20th century to conclude that law was not an important part of Imperial Chinese society. This notion, however, has come under extreme criticism and is no longer the conventional wisdom among Sinologists, who have concluded that Imperial China had an elaborate system of both criminal and civil law which was comparable to anything found in Europe.