Traditional Chinese Law and Its Contribution to Understanding the Contemporary Chinese Lawintroduction - China Essay Example

Name of the student: Course: Instructor: Date of submission: Traditional Chinese law and its contribution to understanding the contemporary Chinese lawIntroduction | | In order to develop a proper understanding on to what level the ancient or traditional law is significant to understanding and comprehending contemporary Chinese law, it is imperative to acknowledge the cultural, political, social and historical facets of the Chinese legal tradition - Traditional Chinese Law and Its Contribution to Understanding the Contemporary Chinese Lawintroduction introduction || | In order to develop a proper understanding on to what level the ancient or traditional law is significant to understanding and comprehending contemporary Chinese law, it is imperative to acknowledge the cultural, political, social and historical facets of the Chinese legal tradition. Chinese present legal system reveals a number of influences including the Chinese culture and deeply rooted philosophies of classical China such as Confucianism and legalism.

Nonetheless, one concept that has attained a great level consensus is the idea of Confucianism that has contributed largely to the development and understanding of the modern China law. For instance, some historians and legal analyst explains that the advancement of traditional Chinese legal system is defined by the confucianization of law, while some argues that China has Confucian foundation legal account[1]. In fact, this concept played a significant role in developing the ancient Chinese legal system, the legal success of Tang and numerous dynasties that later contributed highly to the development of the contemporary laws.

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Furthermore, even though there is little explicit evidence linking China’s imperial and modern laws, the impacts of Confucian philosophy and ethos is readily obvious in the modified and transformed Chinese legal culture[2]. An Introduction to Confucianism Confucius (Kong Fuzi) who lectured at an era of pronounced social disorder during the Seventh Century B. C. , on the foundation of the traditional approaches and principles, particularly as prescribed by the ancient Zhou (Chou) rulers or as documented in their deeds (3.

14), convention li, which implies numerous effects, but specifically, denial of the eternal and operative normativity of official and sanction. Confucius essentially champions social and political order via a procedure of persuasion and instance, which can be got from the concept of Confucian Viewpoint that defines the human treatment of the emperor. For example, when it postulates that the moral strength of a gentleman is likened to wind, while that of a common man is compared to grass.

According to Confucius, human nature is kind, therefore, he prefers personal-cultivation and education as the way by which people should be directed. In essence, he underpins that people should be guided by virtue is emphasized for benefits, values and compromise so as to prevent any kind of friction and form a perfect universe of peace and harmony in which the proper coexistence of human and nature can be noted. Confucius’ approaches towards law can be easily be got from Analects as can be supported by the phrase when he says “ I could adjudge lawsuits just like any other person.

However, I would love to make lawsuits needless”. This is because, the people ought to be motivated positively by li, conduct themselves in a correct way as punishment is nothing but a source of making people shameless. Confucius similarly encourages the human relationship between the leader and the subjects and also between families. On the contrary, the legalists maintains that human beings can coexist in a society harmoniously only when the offenses are handle by prompt punishments and underpins state powers and control instead of championing morality[3].

The law which at times is called (fa), as their entity is discouragement, enforces severe penalty for failure to adhere with the responsibilities levied by the government and the moral concerns are rigorously exempted in the conduct of the state. Confucianism and legalism had co-occurred, with uneven effect and conflicts in the entire China history. After being implemented as a national ideology, the Confucians, on one side recognized the superiority of li to fa, which subsequently, as a result of being Confucianized, played a subservient role to li[4].

The spirit and at times the real necessities of the Confucian li were integrated into the legal ciphers. For instance, from the time of Han onwards, the disguising of offenses that involves between father and son, which was handled by Confucius, legally allowed and in effect, the “ten outrages” described by the Tan, illustrated the significance Confucian morality. Hence, the disciplinary codes are illustrated as a distillation of Confucian legal teaching cast into the kind of rules and regulations associated with sanctions.

On the other hand, the Confucian similarly acknowledged that based on the existent situations State laws were relevant and required. However, they were inferior to li. The laws should majorly be used as a way of enhancing order, which could assist in supplementing and instilling moral values prescribed by Confucian li. Regarding both li and fa as mechanisms of emperor to govern the dual resources of power that reinforce each other in underpinning a system, makes it more convenient to comprehend why Legalism and Confucianism coexist with tension.

In real sense, a lengthy process of knowledge amalgamates these dual strands to generate a distinct Chinese concept of legality[5]. Structures of China’s Legal Tradition Confucian principles and values were applied by Dong Zhongshu and the idea of supporting these principles was to unite the nation and to attain a cosmic harmony. During this era, the concept of Confucian was bolstered through all the legal codes and rules as the foundation spirit ancient Chinese law. There are four key features of traditional laws that had help significantly in constructing the contemporary laws.

Traditional laws explicitly acknowledge and protect the uneven status of the Chinese citizenry. Perhaps, the most noticeable impacts on imperial Chinese law are the concept of legalized imbalance[6]. Chinese law ceaselessly varied its treatment based on the individual status in the society, his or her relationship between the victim and the offender and the particular situation such as age, sex which were in this matter in accordance with the Confucianism and as part of the set natural order with respect to the world harmony.

Moreover, a stiff hierarchy within family and also within the society which always defines Confucian social thinking was similarly emphasized. For example, a father who wronged his son would be penalized much less severely compared to a son who offended his father. Furthermore, according to the penal codes, females were separately discussed from the rest of the society. Besides, social status was seemingly more significant than the legal penal codes or rules[7].

The people of China similarly engaged the commitment of those who helped other with pleadings and lawful documents for economic gain even though these people enjoyed less respectable status. In many kingdoms, the laws and penal codes allowed for the severe punishment of the persons convicted of assisting others to come up with false accusation. In real sense, less number of institutions of private laws were established for instance the Ming Dynasty. There is a gap of private law in grand China. The

private issues were handled on when they had something to do with criminal or administrative law. Li to certain degree established the foundation for all laws associated with the private matters. Complicated issues related to family such as marriage, inheritance, separation and divorce, based on the Confucian principles, the leader of the family mostly the father acted as conciliator, and incase this family figure is absent, an outsider or relative with a renowned achievement and character could serve as a conciliator to handle this issues.

Where the parties involved in the conflict were not related to each other but are from the same kin-group, or stay in the same locality, here the eldest of the king-group or the elite, or the seniors of the guild were engaged to act as a reconciliator. The Confucian-trained magistrates officials in the department of justice even though not specialize in law, often, acknowledge the verdict made by the leaders of the local communities and shunned people from the coming up with the private dispute in the court.

Generally, as the basics of Confucian morality dictates, there is no notable substantive variation in the Chinese penal codes as it preserves respect for the ancestors, shown in and strengthened by the rites. Indeed, the concept of Confucian in some perspective can be shown by its recourse from the ancient times as a way of upholding the present legal system[8]. The Influence of Confucianism on Contemporary Chinese Law

The concept of Confucianism had one time fought and suppressed particularly during the Cultural Revolution owing to its association with the anti-socialism and feudalism and because of this, apparently there is not notable link between the traditional law and the modern legal system of China. However, the influence and the impact of the ancient law, particularly the old-style legal system, on Contemporary law cannot be wished away or ignored. Ideally, one can easily and conveniently identify some Confucian influence and impacts provision and values from the contemporary Chinese law.

Confucius’s concept take on and views on courts attribute the measure of settling matters on courts as lack of proper virtue within the society. This is to be prevented by all possible means. The significant of mediation as an idea found mainly in the contemporary legal system through courts and judges can be noted as a continuation of the Confucian ideas which represent the traditional legal system. Basically, the idea of li that emphasizes on the concept of mediation to solve disputes and conflicts within the society can still be found in the present Chinese legal system.

For example, according to Article 111 of the contemporary Chinese legal system through their constitution stipulates that the residents and the committees have the mandate to mediate civil undertakings and sustain public harmony and order. Another pair of instances can be got from the “Civil Procedure Law” , one of which according to Article 16, constitute the people conciliation committees to assist parties on charitable basis to attain agreement and settle their conflicts.

Similarly, based on chapter 8, the law gives the courts the mandate to conduct conciliation between conflicting parties prior to or during the court-martial. Confession and re-education are highly essential. Traditionally and contemporarily, the grand penal codes have certain rules that, under certain situations, should accord offenders who sincerely confess their wrong and amoral activities, full or partial exclusion from chastisement. These rules and penal codes originate from the concept of Confucian punishment as a suitable for correction of the hopeless wicked.

Hence, the initial essential step in any prosecution process is the effort to get from the accused a confession, which strengthens and forms the basis of decision-making process of the court. The attitudes and the character of the lawbreakers or delinquents in any trails process neither considered unnecessary nor unrecognized for the verdicts and will similarly be supported by the contemporary Criminal Law acts under Article 72 to 80, which stipulates that a sentence or any kind of punishment may be suspended or lessen depending on the prevailing situations or circumstances.

For example, in Article 78, a criminal figure during the time of punishment , may have his or her sentence lessen if he honestly and earnestly recognize and follow to the latter prison regulations, admit reforms via education among other measures and conditions of the prison. Some practices of imbalances that exist in the modern law system in China, such as the need to search for approval from a highly classed authority prior to investigating and prosecuting high-placed official in the society may be attributed to Confucian concept which in this case, represented traditional concept of legal system.

According to some Party rules and regulations, Highly-classed party officials are mainly disciplined in person. There are some rules and regulations precisely and exclusively designed for Party officials, for instance, the aforementioned parallel investigation process autonomous upon the Criminal Procedure Law. In practice, the inquiry of criminal activity involving this clique of people is clandestinely carried out at particular place and time by separate Party members or special personnel.

Based on the investigation, if any of these officials found guilty or the situation of the Crime have spread in the public, then the highly rank CCP officials may opt to take his or her name forward and recommend the victim for prosecution through Prosecuting organs[9]. The most recent and conspicuous case of this scenario is the bribery case of Cheng Kejie, who was the former governor of Guangxi Zhuang, a minority and independent Region.

Similarly, we can also find, from the Organic Law of the Local People’s, which stipulates that “no deputy to any local people’s Congress at or above the county rank may be detained or arrested or placed in a criminal lawsuit prior to the consultation and consent of the presidium of the people’s congress or when the people’s congress in not in session, without the consent of its standing committee. ” This traditional legal concept is not established on democracy but on totalitarianism. The rulers were crowned as sons-of-heaven that cannot be affronted that is based on clause 3.

13 of the old or traditional legal constitution. It goes ahead in chapter 16. 8 where it directs that gentle men should leave in fear and hence, had the supreme authority of punishment[10]. Presently, the ideology of supremacy of law and the penal codes are still not completely accepted by the government officials. Some researchers and law analysis postulates that the Chinese legislation is applied to enhance present party policy and subject to further legal reflections. It is therefore obvious that the law has to a significant level boosted to the center stage of the society.

However, this elevation does not ensure the sovereignty of law in the society. Party policies and principles, and governmental authorities are still often rendering law a secondary power in the society. For example, even though the present China courts are institutionally autonomous and are not in any way interfered by the government of the day, they are scarcely structurally immune from the influence of the government, since most judges are also Party officials and members and so have to follow the direction of the senior officials who are normally highly-ranked government officials.

One of the most striking situations is that the sovereignty of the Party and rule of law has a tenacious impact on both officials and the common man in the society. Nonetheless, Chinese leader and officials in recent past, called for the their government to govern the country based on the rule of law, which stipulates that the Party and the government officials should be put before the law as nobody in the country is immune to the law and penal codes of the country. Legalism The second philosophy that defines one of the traditional legal systems of the people of China is the concept of legalism.

According to legalism concept, rewards and punishments were all meant to sustain order and harmony within the Chinese society. In fact, the legalist postulates that man was essentially wicked and selfish and needed a draconian collection of laws that would him convenient to control and to avoid or evade social disruption. The legalist philosophy encourages the destroying the feudal privileges, strict responsibility for any amoral actions and the standardization of the individual responsibilities in a way whereby everyone is subjected equally to the similar standard[11].

They further underpinned that the set standards are universal and everybody within the society are subjected to it, regardless of the persons’ status in the society. In fact they ensured that these standards do not favor the noble members of the society over the common or meek members. The legalist also saw the law as a way to protect institutional sustenance by way of a strict, coherent and public penal code. The legalist argues that an emperor or any ruler could not rule effectively and efficiently devoid of set of laws.

Their doctrine was inclined to law enforcement with a view of strengthening the state over the governing of family or clan. Group duties and responsibilities were directed within the family or among the simple units of the families and everybody was under a privilege to report crime of be subjected to communal penalty. The continual threat to severe punishment resulted to the Chinese distrust and negative attitudes to all forms of government[12]. With regards to the present legal structure of the republic of China, the concept of legalism has donated some of its significant concepts to the advancement of the current China legal system.

Given that legalist emboldens application of law as a means of directing and governing China Citizenry, these laws with similar intentions albeit written in chapters and articles are presently used to govern the Chinese. Breaking of these laws comes with a consequence just like the ancient legalist who postulates that every person must be accountable for his or her amoral behavior and to emphasize on this, this philosophy believed in severe punishment regardless of the criminal’s social status or rank.

This hence, helps one to comprehend the implication, the origin and the consequences of the written contemporary rules meant to govern the people of china. Unlike the Confucian view that underpins the need of conciliation between the offender and the offended, implying that instead punishing the crook in the society, there are conciliators within the societies who help to make sure that the conflict between the two parties are amicably solved[13]. Conclusion The legalism and Confucian concepts have contributed highly to advancement and transformation of the Asian countries’ contemporary legal system, particularly China.

Basing its foundation on the concept of Confucian and Legalism, modern Chinese law systems have been advancing rapidly in the last three decades. In essence Legalism and Confucianism, each has contributed significantly for the structuring and developing the China legal system up to its both classical and contemporary state[14]. Confucianism, in contrary to Legalism, upholds that the verdict class is directed by the societal virtue but not law. While on the other hand, Legalism fosters suppression of the dissent. However, both ancient legal systems sough to ensure the reuniting of then split China, although they took dissimilar approaches.

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(2004). Law and legal culture in comparative perspective. Stuttgart [Germany: Franz Steiner Verlag. [7] Peerenboom, R. P. (2002). China’s long march toward rule of law. Cambridge, UK: Cambridge University Press. [8] Spence, J. D. (1990). The search for modern China. New York: Norton. [9] Kissinger, H. , & Kissinger, H. (2011). On China. New York: Penguin Press. [10] Goh, B. C. (2002). Law without lawyers, justice without courts: on traditional Chinese mediation. Aldershot, Hampshire, England: Ashgate. [11] Ebrey, P. B. (2010). The Cambridge illustrated history of China (2nd ed. ).

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