The Tradition of Chinese Law and Its Modern Transformation

Author: Zhang Jinfan
Publisher:
Publish Date: 2005-06-01
Features: China is a world-renowned ancient civilization with a legal tradition that dates back to around 3,000 BCE. This tradition has been continuous and unbroken, forming a long-standing and distinctive legal heritage that stands proudly among the world's legal histories. The rich materials and valuable experiences it has left behind demonstrate the significant contributions of the Chinese nation to the global legal culture treasury, earning attention from legal historians both domestically and internationally.
Ancient Chinese law, during its long development, maintained both internal continuity and adaptability or transformation in response to specific times and circumstances. These two aspects are not contradictory. On the contrary, a legal tradition without adaptability is stagnant and cannot develop distinctive characteristics in different historical stages. In ancient China, a unified multi-ethnic nation with uneven political, economic, and cultural development, various regions and ethnic groups all contributed to the formation of the legal tradition of the Chinese nation. This process involved both conflicts and mutual integration, creating a vibrant and diverse picture. This diversity in legal tradition also stems from its multi-source cultural foundations. Confucian, Mohist, Daoist, and Legalist schools all exerted their influence on the development of ancient Chinese law and the formation of its legal tradition. However, amidst this diversity, there was a fundamental tendency—the dominance of Confucian thought, which was determined by the moral idealism of China's deep-rooted patriarchal society.
Due to the vast scope of ancient Chinese legal tradition and its span of five thousand years, it requires study and summary from multiple perspectives, levels, and angles to reflect its overall picture and historical truth. The purpose of studying China's legal tradition is to correctly understand how law continuously perfects itself in development and its position and value in social progress, thereby grasping the objective laws of legal development and enhancing the initiative in building socialist rule of law. Tradition does not mean stagnation or conservatism; national characteristics are not inherent weaknesses. Tradition is the accumulation of history and culture, which can only be renewed, not eradicated. Without tradition, one loses the distinctive features of national culture and the foundation of historical and cultural progress. We must draw from the inherent legal tradition to tap into the life-giving waters that have nourished China for five thousand years, scientifically summarizing and absorbing valuable elements.
Experience shows that the deeper and more thorough our reflection on tradition, the better. Since the mid-19th century, Western legal culture has been introduced into China through various channels, marking the beginning of the conflict and gradual integration of two legal cultures. From the history of cultural exchanges between China and the West, the period around the Opium Wars was entirely different. Ancient China adhered to the idea of "When barbarians enter China, they become Chinese" in its "respect for the king and expulsion of barbarians" philosophy. Both the Han and Tang dynasties demonstrated a sense of grandeur in China. Emperor Zhu Yuanzhang of the Ming Dynasty spoke of both "the distinction between the Chinese and the barbarians" and "a united world under one sky," with the former being the essence and the latter the grand vision. In modern times, with the dignity of the "Celestial Empire" no longer upheld under the oppression of world powers, advanced thinkers proposed "learning from the strengths of the barbarians to restrain them." Later, some bureaucratic groups advocated "preserving the Chinese body while adopting Western techniques," paving the way for the acceptance of Western culture.
In terms of legal culture, the integration of Chinese and Western legal traditions from conflict, partial acceptance, full acceptance, to fusion into a new legal culture is a lengthy process. Different groups and individuals with varying interests have had different attitudes toward Western legal culture. For example, Yi Xian, who presided over the Imperial Household Department for Handling Affairs with Foreign Countries, was highly interested in translating international law from a practical perspective. Meanwhile, reformers used Western legal theories to reform the political system. Due to differences in values between traditional Chinese and Western cultures, legal concepts also varied. Some in the West believed that the unified ancient civilization of China—oriented by ritual rather than law—was a "ritual-ruled state" with no need for law. This was clearly a misunderstanding stemming from differences in legal concepts. Western legal concepts are closely tied to the concept of rights, and under its guidance, the most developed part of Roman law was private law governing equal relationships. Correspondingly, abstract and independent personalities, developed contractual relationships, and the concept of equality were the foundation and of the development of private law.
The core of traditional Chinese legal concepts is criminal law, whose primary function is "to discipline the wicked and warn the ignorant," serving as "a tool to control the people." Under its guidance, ancient Chinese law emphasized public power over private power, with criminal law supreme, and the study of criminal law names became synonymous with ancient legal studies. Therefore, the difference between ancient Chinese law and Roman law lies in quality, not quantity, despite both being highly developed. The excellent legal culture of ancient China significantly influenced the legal development of neighboring countries and regions for a long period, contributing to the world's legal civilization. Even today, some Western thinkers, when reflecting on their own legal culture, pay attention to absorbing the excellent traditional elements of Chinese legal culture.
Regarding the integration of Chinese and Western legal cultures, the late Qing Dynasty saw debates between conservatism and reform. The conservatives viewed the traditional legal culture dominated by Confucian legal thought as the "national essence passed down for thousands of years" and the "foundation of the state," refusing to change the "ancestral laws" that embodied this tradition. The reformers accepted Western theories, altered their legal values, and actively engaged in legal reforms, but some among them exhibited a simplistic "acceptance without reflection" tendency. Historical experience shows that clinging to tradition cannot achieve legal modernization, nor can simple acceptance equate to modernization, let alone complete it. Whether for traditional culture or foreign culture, there is a question of selection, with the standard being whether it benefits social progress and aligns with national conditions.
If the legal reforms of the late Qing Dynasty marked the beginning of China's legal modernization, then the subsequent periods of the Republic of China, the founding of the People's Republic of China, and the reform and opening-up today represent several stages in China's journey toward legal modernization. Since social development is endless, legal modernization can only have stages, not an end.