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Home / Issues / Volume 2, Number 2 (Spring 2010) / Classical Chinese Jurisprudence and the Development of the Chinese Legal System
VOLUME 2, NUMBER 2 (spring 2010)
Classical Chinese Jurisprudence and the Development of the Chinese Legal System
By CHANG Wejen | Essay | 2 Tsinghua China L. Rev. 207 (2010) | Download Full Article PDF

I. Introduction

The development of the traditional Chinese legal system began over two thousand years ago, it continued through the millennia even during periods of domestic unrests and the conquest dynasties (e.g., the Yuan [1206-1367] and the Qing [1644-1911]), its pace varied but it was never seriously disrupted or stopped. Although not always for the better, the system was made more sophisticated, and thus marking it as a rare, exceptional phenomenon in human history. Students of the system were usually impressed by its resilience and overwhelmed by its complexity. They probed here and there, but, like the proverbial observer of a leopard with a long, thin tube, could see only the spots in its fur but not the whole animal. If he generalized what he had learned or extrapolated from it, the result could be ludicrous. Legal history textbook writers tried to present a panorama, but succeeded only in painting scattered patches, without explaining why they so appeared. A better approach is to view the development as an epic drama. To grasp its main story line, a viewer has to identify the key players and recognize the pivotal events. If he is to evaluate the drama and see what lesson it may teach, he has to keep in mind first the question what the dramatist wanted to achieve, and then the question how the players performed – in our case, he has to ask what the objectives the Chinese society were to pursue, what it wanted its various institutions, including the legal system, to accomplish, and then how the various people – the intellectuals, the rulers, the administrators and the common people – who participated in establishing and operating the legal and other systems, worked to reach for those objectives. A comprehensive study has to take such an approach, but due to the restriction on its length, this paper discusses mainly the contributions of the intellectuals, and points out only the most conspicuous influences they had on the traditional Chinese legal system. After taking a bird’s eye view of the legal system, the author addresses some common questions about it and point out some of its distinctive characteristics. Finally, the author takes a look at the prospect of its future and proposes a few suggestions for its further development.

In the great antiquity the tasks of making and enforcement of rules that govern people’s behavior were probably carried out by persons who controlled society with power. But people soon became aware of many complicated questions. One of the most serious questions concerned the legitimacy of the ruler’s power. Other questions were broader: How should people live? If there could be different ways, were some better than the others? Was there one way that was the best, or the right way? What did “right” mean? What distinguished “right” from “wrong?” How could people know the difference? How were people to follow “the right way?” More specifically, how should people in a particular circumstance “rightly” act in relation to other people, other things, and the environment? Should the “right” way be manifested in the forms of rules for people’s behavior? What was a rule? What were the immediate and ultimate objectives of rules? Who made rules? What should be the qualifications and credentials of a rule-maker? What made a rule good or bad? Where different rules were applicable, how should people choose, particularly if the rules were in conflict? Who implemented rules? What qualified someone for this job? How should rules be implemented? What if a rule was not generally accepted? What if the maker and/or the implementer of rules abused his power? What was and should be the relationship between the people and the makers and implementers of rules – in other words, between the common folks and the authorities? Such questions inevitably led to many more philosophical ones, including how people and other things came into existence, and questions like what distinguished humans from other creatures and things? Was there a “human nature?” What was the meaning and purpose of life? Why did people live in a society, what made a society viable or precarious? This is just to name a few and the list goes on.

It was the thinkers who tried to answer such questions. In different times and places thinkers offered different answers and supported them with different jurisprudential theories. Such theories influenced the behavior of everyone, including the ruler, the implementer of rules and the ordinary people. Their reactions in turn caused the thinkers to modify the theories. Through these steps the traditional Chinese legal system developed. Accordingly, the author starts with an analysis of the theories.
 
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