'
Chinese law' is one of the oldest
legal traditions in the world. For most of the
history of
China, it 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. These influences remain in the
Soviet-influenced system of the
People's Republic of China and the
German-influenced system of the
Republic of China.
Chinese legal tradition
Main articles: Traditional Chinese law
The idea of law
The word for law in
classical Chinese was ''Fa'' (法). The
Chinese character for ''Fa'' denotes a meaning of "fair", "straight" and "just", derived from its water
radical. It also carries the sense of "standard, measurement, and model".
[1] Derk Bodde and Clarence Morris held that the concept of ''fa'' had an association with ''yi'' (義: "social rightness").
[2] 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 ''fa'' and Western law: "The word 'law' in Western languages has four different interpretations in Chinese as in ''li'' (理: "order"), ''li'' (礼: "rites", "rules of propriety"), ''fa'' (法: "human made laws") and ''zhi'' (制: "control").
[3]
A term which preceded ''fa'' was ''xing'' (刑), which originally probably referred to
decapitation. ''Xing'' 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" -
tattoing,
disfigurement,
castration,
mutilation, and
death. Once written law came into existence, the meaning of ''xing'' was extended to include not only punishments but also any state prohibitions whose violation would result in punishments. In this usage, ''xing'' may be understood in the sense of
penal law or
criminal law. An example of the classical use of ''xing'' is ''xing bu'' (刑部: "Department of Punishment") for the legal or justice department in imperial China.
Unlike many other major
civilisations where written law was held in honour and often attributed to divine origin, law in China was viewed in purely
secular terms and its initial appearance was greeted with hostility by many as indicative of a serious moral decline, a violation of human morality, and even a disturbance of the total cosmic order.
[4] Ordinary 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. As regards the Chinese belief in the cosmic order, it was held that correct behaviour was behaviour consonant with the immanent order which set boundaries to appropriate responses. ''Fa'' defines these boundaries while ''xing'' state the potential costs to the individual of exceeding them and impose penalties for these actions.
[5]
Confucianism and Legalism
The Chinese legal tradition developed from
Confucianism and
Legalism, two rival
schools of thought during the
Spring and Autumn and
Warring States periods. The Confucian school held that
human behaviour was subject to formation and reformation through the
education process. They advocated rule by moral persuasion in accordance with the concept of ''li'' (礼: "propriety"), a set of generally accepted social values or norms of behavior. For Confucians, ''li'' was rooted in innate human
feelings, what people would in general instinctively feel to be right. The ''
Book of Rites'' describes ''li'' as "forbidding trespasses before they are committed, whereas ''fa'' punishes criminal acts after their commission." Thus, law could supplement ''li'' by providing people with appropriate models via a mixture of rewards and penalties. ''Li'' and ''fa'' represent a conceptual dichotomy which is traditional in China. They also represent the debate between the doctrines of Legalists and Confucianism, remotely resembling, but fundamentally different from, the
positivism and
natural law in the West.
''Fa'', as used by the Legalists, referred to several ways in which state power could be organised and exercised: through laws and punishments, administrative and military systems, policy planning, statecraft, or methods of personnel management.
[6] Whereas the Confucian school depended on ''li'' to maintain the social order, Legalists invoked law for the same end and employed punishment as the enforcing agent. Legalists rejected traditional ethical values and chose to emphasise government by law. They conceived of a
totalitarian political order in which the state would be ordered by a set of laws that would be administered with complete regularity and impartiality. They drew from
Mohists' stress on uniform standards and on the moblisation of society, whilst rejecting its doctrine of
universal love and condemnation of
offensive warfare.
Laozi's idea of nonassertion (''wuwei'') is also implied in the Legalists' conception of the state, in which the elaborate legal machinery of government functions of its own accord, obviating the need for the ruler's direct intervention. The state of
Qin utilised Legalist policies, famously implemented by
Shang Yang, to unify China under the
Qin dynasty.
Although the Confucian and Legalist schools were adversarial philosophies, they shared some important ideas in common. For instance, both insisted that the emperor had paramount power over all facets of life, including law. One consequence of their early dominance is that there has been a lack of philosophical study of law in China. There was hardly any discussion of the fundamental questions associated with Western
jurisprudence, such as the nature of law, the authority and legitimacy of law. Nor was there
epistemological and
ontological probing into law. What imperial China had instead was ''lüxue'' (律学: "the study of imperial codes"), the annotation of and commentary on the successive imperial codes, and there were scattered commentaries on some well-known cases.
Confucianisation of law
The significant influence of the Legalist tradition in Chinese law has historically been overlooked. Although the Confucian ideology provided the fundamentals for the substance of traditional law, the Legalist school constructed the important framework of the traditional legal system. 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 recognised four sources of law: ''lü'' (律: "codified laws"), ''ling'' (令: "the emperor's order"), ''ke'' ("statutes inherited from previous dynasties") and ''bi'' ("precedents"), among which ''ling'' 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.
Eventually, 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 modernisation.
[7] 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 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.
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.
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.
Modernisation
The introduction and translation of legal texts into Chinese is believed to have been started under the auspices of
Lin Zexu in
1839. More systematic introduction of Western law together with other Western sciences started with the establishment of
Tongwen Guan in
1862. The major efforts in translation of Western law that continued until the
1920s prepared the building blocks for modern Chinese legal language and Chinese law.
[8] Legal translation was very important from
1896 to
1936 during which period the Chinese absorbed and codified their version of Western laws. These efforts were assisted by the medium of the Japanese legal language and law developed in Japan during the
Meiji period which involved in large part Japanese translation of
Continental European laws.
In the late
Qing dynasty there was a concerted effort to establish legal codes based on European models. Because of the German victory in the
Franco-Prussian War and because
Japan was used as the model for political and legal reform, the law codes which were adopted were modelled closely after that of
Germany.
Attitudes toward the traditional Chinese legal system changed markedly in the late-20th century. Most Chinese and Westerners of the early 20th century regarded the traditional Chinese legal system as backward and barbaric. However, extensive research into China's traditional legal system has caused attitudes to become more favorable in the late-20th and early 21st centuries. Researchers of the early and mid-20th century tended to compare the traditional Chinese legal system to then contemporary systems, finding the former to be backward. However, more recent research compared the 18th century Chinese legal system to European systems of the 18th century, resulting in a far more positive view of traditional Chinese law.
The Department of Punishment was changed to ''fa bu'' (法部: "Department of Law") in the early 1900s legal reforms.
Republic of China
The existing German-based legal codes were then adopted by the new
Republic of China government, but they were not immediately put into practice - following the overthrow of the Qing dynasty in 1911, China came under the control of rival warlords and had no government strong enough to establish a legal code to replace the Qing code. Finally, in 1927,
Chiang Kai-shek's
Kuomintang forces were able to
suppress the warlords and gain control of most of the country. Established in
Nanjing, the KMT government attempted to develop Western-style legal and penal systems. Few of the KMT codes, however, were implemented nationwide. Although government leaders were striving for a Western-inspired system of codified law, the traditional Chinese preference for collective social sanctions over impersonal legalism hindered constitutional and legal development. The spirit of the new laws never penetrated to the grass-roots level or provided hoped-for stability. Ideally, individuals were to be equal before the law, but this premise proved to be more rhetorical than substantive. In the end, most of the new laws were discarded as the Kuomintang became preoccupied with fighting the Chinese Communists and the invading Japanese.
Law in the
Republic of China on
Taiwan is based on the German-based legal system which carried to Taiwan by the
Kuomintang. In the area of
constitutional law, the Republic of China uses the
1947 Constitution which was promulagated for both Mainland China and Taiwan although numerous changes have been made to take into account the fact that the Republic of China only controls Taiwan and two counties of
Fujian.
People's Republic of China
Main articles: Law of the People's Republic of China
After the
Communist victory in
1949, the
People's Republic of China quickly abolished the ROC's legal codes and attempted to create a system of
socialist law copied from the
Soviet Union. With the
Sino-Soviet split and the
Cultural Revolution, all legal work was suspected of being counter-revolutionary, and the legal system completely collapsed.
With the start of the
Deng Xiaoping reforms, the need for reconstructing a legal system to restrain abuses of official authority and revolutionary excesses was seen. In 1982, the
National People's Congress adopted a new
state constitution that emphasized the rule of law under which even party leaders are theoretically held accountable. This reconstruction was done in piece-meal fashion. Typically, temporary or local regulations would be established and after a few years of experimentation, conflicting regulations and laws would be standardized.
Since 1979, when the drive to establish a functioning legal system began, more than 300 laws and regulations, most of them in the economic area, have been promulgated. The use of mediation committees, informed groups of citizens who resolve about 90% of the PRC's civil disputes and some minor criminal cases at no cost to the parties, is one innovative device. There are more than 800,000 such committees in both
rural and
urban areas.
In drafting the new laws, the PRC has declined to copy any other legal system wholesale, and the general pattern has been to issue laws for a specific topic or location. Often laws are drafted on a trial basis, with the law being redrafted after several years. This process of creating a legal infrastructure piecemeal has led to many situations where the laws are missing, confusing, or contradictory, and has led to judicial decisions having more precedental value than in most
civil law jurisdiction. In formulating laws, the PRC has been influenced by a number of sources including traditional Chinese views toward the role of law, the PRC's socialist background, the German-based law of the
Republic of China on
Taiwan, and the English-based
common law used in
Hong Kong. The law of the
United States has also been very influential particularly in the area of banking and securities law.
Legal reform became a government priority in the 1990s. The Chinese government has promoted a reform it often calls "legalisation" (法制化). Legalisation, among other things, has provided the regime with a gloss of legitimacy and has enhanced predictability. There have been major efforts in the rationalisation and strengthening of the legal structure and institution building in terms of developing and improving the professionalism of the legislature, judiciary and legal profession. As market reforms have deepened and social inequality has widened, legal forums - ranging from
mediation and
arbitration commissions to courts - have come to play an increasingly prominent role.
The 1994 Administrative Procedure Law allows citizens to sue officials for abuse of authority or malfeasance. In addition, the
criminal law and the criminal procedures laws were amended to introduce significant reforms. The criminal law amendments abolished the crime of "counter- revolutionary" activity. However political dissidents are sometimes charged on the grounds of subverting state security or publishing state secrets. Criminal procedures reforms also encouraged establishment of a more transparent, adversarial trial process. Minor crimes such as prostitution and drug use are sometimes dealt with under
reeducation through labor laws. The PRC constitution and laws provide for fundamental human rights, including due process, but some have argued that they are often ignored in practice. (See
human rights in the People's Republic of China)
The basic principles of Chinese legislative drafting include generality and flexibility. Sometimes excessive generality and omissions in Chinese law, coupled with the wide discretionary powers conferred on local authorities to implement laws, undermines the predictability and certainty of law. Furthermore, as Chinese law is intended to be educative, the language of the law is that of the ordinary language comprehensible to the average
citizen, although many laws are drafted in broad and indeterminate language.
As a result of a pending trade war with the
United States of America over violations of
intellectual property rights of American corporations in the early 1990s, the
People's Republic of China's trademark law has been modified and now offers significant protections to foreign trademark owners.
After the transfers of sovereignty,
Hong Kong and
Macau continue to practise English
Common Law and
Portuguese legal systems respectively, with their own
courts of final appeal. In other words, Hong Kong and Macau are outside of the legal jurisdiction of the People's Republic of China, except on constitutional issues.
Legal rights
Classical Chinese does not have a semantic equivalent to the concept of "rights". The idea of rights was introduced to China from the West. Its translation as ''quanli'' (权利) was coined by
William Alexander Parsons Martin in
1864, in his translation of
Henry Wheaton's ''Elements of International Law''. The term ''quanli'' can also be translated as "power."
Rule of law
One of the most commonly used phrases in contemporary China, by legal scholars and politicians alike, is ''fǎzhì'' (法治). ''Fǎzhì'' can be translated into English as "
rule of law" or "rule by law". The concepts of ''yi fa zhi guo'' (以法治国: "governing the nation in accordance with law") and ''jianshe shehui zhuyi fazhi guojia'' (建设社会主义法制国家: "building a socialist rule of law state") have been part of the Chinese Communist Party's official policy since the mid-1990s. In
1999, the NPC adopted an amendment to the Chinese Constitution, incorporating both concepts in Article 5.
The existence of the rule of law in China has been widely debated. The rule of law is regarded by some as presupposing political or economic structures of
liberal democracy,
human rights and other ideal socio-legal order.
[9] Given China's socialist and non-democratic political system and practice, it is at best regarded as a country of rule ''by'' law with law used by the state as an instrument for social control.
[10] However, others rely on the formal or thin theory of rule of law to interpret ''fazhi'' as a legal reality in China.
[11] The thin theory, as espoused by
Joseph Raz, emphasizes the formal or instrumental aspects of a legal system regardless of whether it is part of a democratic or non-democratic society.
[12]
The term ''fazhi'' was first used by the Legalist school of pre-Han China. Chinese scholars have drawn a particular distinction between ''fazhi'' today and the Legalist ''fazhi'', pointing out that the concept in the past equated to ''renzhi'' (人治: "rule by man").
[13]
It has been argued that in contrast to the narrowly circumscribed rule of law in the Western tradition, Chinese law derives certainty and predicatiblity through the shared values of Chinese society and from its social and political context.
[14]
In general, there seems to be a consensus about the defects of the Chinese legal institution, for instance, the ineffectiveness of the People's Congress in the performance of their constitutional functions of legislation and supervision of government; lack of supremacy of the Constitution and unenforceability of the constitutional provisions; and lack of genuinely independent judiciary and an adequate legal profession, among others.
Direct intervention in particular cases by the CCP has lessened in recent years, as has the direct influence of the CCP on the legislative process.
Notes and references
1. See Liang Zhiping, "Explicating 'Law': A Comparative Perspective of Chinese and Western Legal Culture" (1989) 3(1) ''Journal of Chinese Law'' 55-92.
2. Derk Bodde and Clarence Morris, ''Law in Imperial China: Exemplified by 190 Ch'ing Dynasty Cases with Historical, Social, and Judicial Commentaries'' (Philadelphia: University of Pennsylvania Press, 1973) at 14-15.
3. Yan Fu, ''Fayi'' [法意: "The Spirit of the Laws"] (Beijing: Shangwu yinshuguan, 1981) at 2.
4. Note 4 at 13.
5. Brian E. McKnight, ''Law and Order in Sung China'' (London: Cambridge University Press, 1992) at 6.
6. de Bary, W and Bloom I, ''Sources of Chinese Tradition'' (New York: Columbia University Press, 1999) at 190.
7. Ch'ü T'ung-tsu, ''Law and Society in Traditional China'' (Paris: Mouton & Co., 1965) at 280.
8. Yu Jiang, "Jindai Zhongguo faxue yuci de xingcheng yu fazhan" [近代中国法学语词的形成与发展: "Formation and development of modern Chinese legal language and terms"] in ''Zhongxi falü chuantong'' [中西法律传统: "Chinese and Western Legal Tradition"], vol. 1 (Beijing: Zhongguo zhengfa daxue chubanshe, 2001).
9. See for example Geoffrey de G. Walker, ''The Rule of Law, Foundation of Constitutional Democracy'' (Melbourne: Melbourne University Press, 1988) at 9.
10. Ronald C. Keith, ''China's Struggle for the Rule of Law'' (London: St. Martin's Press, 1994) at 1.
11. Randall P. Peerenboom, "Ruling the Country in Accordance with Law: Reflections in the Rule and Role of Law in Contemporary China" (1999) 11(3) ''Cultural Dynamics'' 315-351.
12. See Joseph Raz, ''The Authority of Law'' (Oxford: Clarendon Press, 1979) at 210-229.
13. A.H.Y. Chen, "Towards a Legal Enlightenment: Discussion in Contemporary China on the Rule of Law" (1999) 17 ''Pacific Basin Law Journal'' 125-165.
14. Keller P, "Sources of Order in Chinese Law" (1994) 42 ''The American Journal of Comparative Law'' 711 at 751.
Further reading
★ Deborah Cao, ''Chinese Law: A Language Perspective'' (Hants, England: Ashgate Publishing, 2004).
★ Neil J. Diamant ''et al'' (ed.), ''Engaging the Law in China: State, Society, and Possibilities for Justice'' (Stanford: Stanford University Press, 2005).
★ Phillip C. C. Huang, ''Code, Custom and Legal Practice in China'' (Stanford: Stanford University Press, 2001).
★ Xin Ren, ''Tradition of the Law and Law of the Tradition'' (Westport, Connecticut: Greenwood Press, 1997).
External links
★
Chinese Legislative Information Network System full text search of English translations of hundreds of PRC laws and regulations
★
China Law Digest
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Related news via China Digital Times
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Article on formal and informal social control
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China - THE LEGAL SYSTEM
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Ancient Chinese Theories of control (management study)
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Judicial independence should come first China Daily/
Beijing Review 2005-11-15 (article on
Peking University legal scholar
He Weifang)
★
China Law Blog
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