A Brief History of Chinese Law

Author: Kevin Holder
In: Article Published: Sunday 11 February 2018

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A Brief History of Chinese Law

Philosophical Background

Traditional Confucian teaching eschewed or at least deprecated the concept of codified legal norms, instead preferring rule by moral persuasion seeking to impose the concept of li (a set of generally accepted social values and norms of propriety) through society rather than through a formal justice system. Confucians believed in the fundamental goodness of man and that education was the key to maintaining social order with codified legislation merely supplementing the societal “jus cogens” provided by the concept of li.

Indeed Taoism, the second most significant stream of ancient Chinese thought was even more permissive, counselling “rule through inaction” which avoided excessive interference with the lives of individuals. Taoists believed that the individual existed within the natural realm rather than organised society and that harmony came not from adherence to man made strictures but rather embracing the rhythm of the natural and supernatural world.

One philosophy within the Hundred Schools of Thought 諸子百家 that embraced codified legal norms was Legalism (法家), which was formulated by Li Kui and Shang Yang in 338BC which adopted a slightly more Machiavellian notion of humanity; that human nature is selfish and that the only way to preserve social order and civilised interaction was to impose discipline from above and to strictly enforce law. Perhaps unsurprisingly, it was Legalism, which formed the philosophical basis for imperial government. During the Han Dynasty, a synthesis of Legalism and Confucianism was formulated to provide jurisprudential underpinnings, which would continue largely intact until the late 19th century.

Imperial China

Legalism was embraced enthusiastically by the Qin dynasty (the first imperial dynasty- 221-207 BC), however it was mitigated and fused with Confucian norms of social control through ethical and moral persuasion during the Han dynasty (206 BC- 220AD). Most legal professionals during this period were not lawyer but rather gentry trained in philosophy and literature.

In the final years of the Qing dynasty (1644- 1911), reformers advocated the introduction of a legal system modelled on the Japanese legal system, which itself was largely based on German Judicial precedents.

Republican China

Following the fall of the Qing Dynasty in 1911, China endured a period where parts of the country were governed by rival warlords with no coherent system of law. In 1927 Chiang Kai-shek’s Guomindang’s forces were able to suppress the warlords and assert control over most of the county bringing about Republican China. Republican China’s Government based in Nanjing attempted to implement a Western style legal system, however few of the Guomindang Codes were ever implemented nationwide, owing to Chinese cultural resistance, which preferred collective social sanctions over impersonal legalism.

The People’s Republic of China

Communist China initially construed law as an instrument of state to realise socialist norms and maintain order and conformity. General principles and flexibility to accommodate prevailing policy directions were preferred over rigid codification. The Communist Party considered that the law should be understood by the populus and accordingly laws were written in simple language. Technical language and complex procedure were avoided to aid common understanding.

Mao Zedong, who during his youth had studied Montesquieu’s The Spirit of the Laws, considered that the law should be an instrument of change rather than continuity and therefore was opposed to codification of the law. Maoists preferred decentralisation of justice. The police and courts were reserved for the most serious cases of infractions with neighbourhood committees and work units being preferred for most legal problems.  These committees and units would seek to promulgate party policy by employing almost Confucianist strategies of persuasion and re-education rather than sanction backed compulsion.

Initially, most professional lawyers were Western trained professions from the Guomindang era. During the 1950s this group was instrumental in China’s adoption of a legal system based on the system used in the Soviet Union. This system favoured codification . The Soviet model was however abandoned during the late 1950s.

During the first thirty years of the People’s Republic, it was considered that China was too large to be governed by a single set of fixed rules or centralised burueacracy. It was considered that simplified directives tailored to the needs of local communities was the best solution. In turn study groups were organised with a view to familiarising every citizen with current directives and circulars.

In a further nod to Confucian traditions, it was considered that non conformism was better addressed through peer group persuasion rather than a formal penal system with codified sanctions. Emphasis was placed on education and rehabilitation rather than retribution.

For a detailed history of the law of the People's Republic of China please see the following article which contains Wikipedia content.

KEVIN HOLDER © 2018

BARRISTER

33 BEDFORD ROW

NOTICE: This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.