Chinese Law - Chinese Legal Tradition

Chinese Legal Tradition

The word for law in classical Chinese was "Fa"(法) . 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 (義: "social rightness"). 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 (理: "order"), lǐ (禮: "rites", "decorum"), fǎ (法: "human laws") and zhì (制: "control").

A term which preceded fǎ was xíng (刑), 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 may be understood in the sense of penal law or criminal law. An example of the classical use of xíng is xíng bù (刑部: "Department of Punishment") for the legal or justice department in imperial China.

The two major Chinese philosophical schools discussed below, Confucianism and Legalism, strongly influenced the idea of law in China. Briefly, under Confucianism, the state should lead the people with virtue and thus create a sense of shame which will prevent bad conduct. Under Legalism, law is to be publicly promulgated standards of conduct backed by state coercion. The tension between these two systems is that Confucianism relies on tradition to make the leader the head of household of all China while Legalism makes standard law that even the emperor should be bound by. The common factor is that both endorse to different degrees a paternalistic conception of the state, which knows better than its citizens and makes laws to protect them. This concept 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 however embraced the Legalist ideal as a way of exerting control over their large and growing territory and population. This process was integrated with traditional Chinese beliefs in the cosmic order, holding that correct behavior was behavior consonant with the appropriate responses set by fǎ. 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 as serving the state, a means of exerting control over the citizenry. In the late Qing dynasty there were efforts to reform the law codes mainly by importing German codes with slight modifications. This effort continued and 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 vis-à-vis the government. The onset of the communist period at first rolled back the development of individual rights with the primary concept of law returning to that of a tool of the state. After 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, created in 1982, states in Article V that no organization or individual is above the law and in 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, an avenue previously unavailable. Despite the deep-seated norm against legal proceedings, litigation in the Chinese courts has increased dramatically, especially 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 but 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 continues to be important is the custom of xinfang or petitions by citizens to the individuals officials for change. The continuing wide use of xinfang 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 xinfang has been institutionalized to some extent with the central government mandating that every level of administration establish a xinfang office to handle petitions and report them up to high levels. This solution by exertion of personal power clearly goes against the idea of rule of law, and worse, some scholars have noted that xinfang today functions more as an informational collection system for the government than an effective review mechanism.