The Tradition and Modern Transformation of Chinese Law (Second Edition)

Author: Zhang Jinfan
Publisher:
Publish Date: 2005-06-01
Features: China is a world-famous ancient country with a legal civilization, and its legal history can be traced back to around 3,000 BC. It has been passed down continuously, forming a long-standing and distinctive legal tradition that stands proudly in the history of world law. The rich materials and valuable experiences it has left behind demonstrate the significant contribution of the Chinese nation to the treasure trove of world legal culture, thus attracting attention from legal historians both domestically and internationally. Ancient Chinese law, during its long development process, maintained both internal continuity and adaptability or transformation based on the times and circumstances. These two aspects are not contradictory. On the contrary, a legal tradition without adaptability is stagnant and cannot form the unique characteristics of different historical stages. In ancient China, a unified multi-ethnic country with uneven political, economic, and cultural development, all regions and ethnic groups made their own contributions to the construction of the legal tradition of the Chinese nation. This process involved both conflicts and mutual integration, creating a colorful tapestry. This diversity in legal tradition also stems from its multi-source culture. Confucian, Mohist, Taoist, and Legalist schools all attempted to dominate and influence the development of ancient Chinese law and the formation of its legal tradition. However, amidst this diversity, there was a fundamental tendency—the dominant position 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 summarization 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 law. Tradition does not mean stagnation or conservatism; national characteristics are by no means inferiority. Tradition is the accumulation of history and culture, which can only be renewed and not abolished. Without tradition, one loses the characteristics of national culture and the foundation of historical and cultural progress. We need to draw from our inherent legal tradition the life-giving waters that have nourished China for five thousand years, and scientifically summarize and absorb valuable elements. Experience has shown 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 exchange between China and the West, the period around the Opium War 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 ambition. In modern times, due to the humiliation of the world powers, the dignity of the Celestial Empire no longer existed. To save the nation and survive, advanced thinkers proposed "learning the strengths of the barbarians to restrain them." Later, some bureaucratic groups advocated "preserving the Chinese body while adopting Western techniques," thereby creating public opinion for accepting Western culture. In terms of legal culture, the integration of Chinese and Western legal cultures from conflict, partial acceptance, full acceptance, to fusion into a new legal culture was a long process. Different groups and individuals with varying interests had different attitudes toward Western legal culture. For example, Yixu, who presided over the Office for the Administration of Affairs with Foreign Countries, was highly interested in translating international law from a practical perspective, while reformers used Western legal theories to reform the political system. Due to the differences in values between traditional Chinese and Western cultures, legal concepts also differed. Some in the West believed that the unified Eastern civilization—China—was a "rule-of-etiquette" state with no law. This was clearly a misunderstanding caused by differences in legal concepts. Western legal concepts are closely linked to the concept of rights, and under its guidance, the most developed part of Roman law was private law, which regulates equal relationships. Correspondingly, abstract and independent personality, developed contractual relationships, and the concept of equality are the foundation and of the development of private law. The core of traditional Chinese legal concepts is criminal law, whose main 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 standing above all other laws, and the study of criminal names becoming the of ancient legal studies. Therefore, the difference between ancient Chinese law and Roman law lies in quality rather than quantity, although both are developed forms. The excellent legal culture of ancient China influenced the legal development of neighboring countries and regions for a considerable period, and it can be said that it made its own contribution 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 parts of Chinese legal culture. In the context of the integration of Chinese and Western legal cultures, the late Qing Dynasty witnessed a debate between conservatism and innovation. The conservatives regarded 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 traditional legal culture. The innovators accepted Western theories, changed their legal values, and actively engaged in legal reform, but a simplistic "acceptance without reflection" tendency also emerged among some. Historical experience has shown that clinging to tradition cannot achieve legal modernization, and a simplistic acceptance does not equal modernization, nor can it complete modernization. Whether for traditional culture or foreign culture, there are issues 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 period from the Republic of China to the founding of the People's Republic of China, and to today's reform and opening-up, represents several stages in China's legal journey toward modernization. Since social development is endless, legal modernization can only have stages and no end.