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Perspectives on traditional Chinese legal culture should be rational

Author  :  Liu Xiaolin     Source  :    Chinese Social Sciences Today     2017-10-18

Chinese civilization is the oldest and the most enduring in the world. China’s excellent traditional legal culture, represented by the legal system, plays a crucial part in its development process. The legal culture should be understood and evaluated based on thorough, detailed comparative studies of all eras and countries. In this way, traditional legal mechanism and culture can be innovatively transformed into excellent historical resources that can provide lessons for us.

Today, there are clear misunderstandings about historical traditions, such as legal conventions, because they are culled from different eras that cover such a long period of time. At the same time, attempts to gain insight into the distant past are complicated by a lack of sufficient records, which has hampered our understanding of historical institutions to such a degree that these institutions have failed to take root in today’s society. 

When ancient Chinese law is mentioned, it often calls to mind the three-character expression “qing, li, fa,” which can be interpreted as “feudal ethics,” “human sympathy” and “national law.” In fact, China’s legal practices in the history conformed to the order that feudal ethics took precedence over human sympathy and national law comes last. Also, feudal ethics and human sympathy were believed to coexist in harmony, forming a value judgment that was prioritized over national law. An arrangement of this kind can be attributed to a lack of explicit description in the traditional legal system.

In terms of traditional law, what do “qing” and “li” mean when they function as legal language? For example, in the Tang Code, a penal code that was established and used during the Tang Dynasty in China, nearly 90 percent of the time “qing” referred to actual facts and nearly 60 percent of the time “li” represented legal regulations or legal principles. As for the attitudes and stances of lawmakers, the ancient Chinese paid enormous attention to law, which is far beyond our understanding. Specific legal terms in the history have clearly shown that people in charge should “investigate the circumstances of the case and deliberate on the punishment.” Similar legal language, such as “the circumstance of the crime are weighed to decide a punishment,” also stress the importance of facts while ignoring human emotion or personal relationships. At the same time, lawmakers prioritized legal terms and legal principles over feudal ethics as they explicated a prerequisite and concluded that “it is reasonable that marriage with them should not be allowed.” 

Comparative studies should not be limited to researching mechanisms. They also need to cover the original context, cultural foundations and social effects of these mechanisms. Evaluation of traditional laws should be based on extensive comparison among all times and all countries. For example, people often believe that Confucianism provided the Tang Code’s guiding principles for lawmaking and theoretical grounds for crime measurement. The code was also considered to be “the fairest set of laws in the Qing Dynasty and the times prior to it.” First, The Tang Code had eminent advantages relative to contemporary foreign laws. Also, it played a prominent role in the development of China’s ancient legal mechanism. Japanese scholar Niida Noboru said that “At that time, there wasn’t a counterpart as developed as the Tang Code. The Constitutio Criminalis Carolina, an epochal medieval code in the Western Europe, appeared 900 years after the Tang Code and it still fell behind in terms of development.” Hence, extensive comparison is the bedrock of objective assessment.

Thorough understanding and comprehensive comparison enable legal lessons for reference. However, the lessons don’t mean direct transplantation, because we can’t use ancient bricks to build today’s house. However, we can look to the past and learn from past techniques, which requires innovative transformation. For example, the regulatory system played a crucial role in China’s ancient state mechanism and produced positive impacts in the aspects of mechanism design, operation effectiveness and social evaluation. The right of regulation originated from royal power, meaning that the mechanism cannot be applied to current society. We need to clearly understand the origin and organization of power and learn from specific terms of regulatory mechanism. It is a process of innovating traditional Chinese laws based on in-depth perception and overall assessment. 

  

Liu Xiaolin is from the School of Law at Jilin University.

Editor: Yu Hui

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