#3040 - Week 7 Lecture Notes – Law And Property Rights - Chinese Economic History Since 1850

Legalist vs. Confucianist Two competing philosophical theories contrasting each other

Legalist:

• Law is an instrument of power

• Good taxation was important

• Imperialism

• Punishment would create fear and discourage bad behavior

• Represented the ruler’s fiat (Fairbank, 1960)

Confucianism:

• Fear of punishment shouldn’t be the focus

• Good moral behavior should be part of the people’s mindset

Law in China was something to be avoided

Legalist concept of law fell short of the Roman law (Fairbank, 1960)

Law was administrative and penal

• Should not be compared to Western legal code

The original meaning of the word punishment in Chinese has been now been mistranslated as law

• Punishment was central to the traditional Chinese legal system

Avoiding punishment led to the Western Treaty ports, which allowed own law

Legal rules were guidelines for bureaucrats to punish and discipline deviant behavior

Traditional view: Weber said that the Western legal system was the beginning of Western capitalism

• Criticized China for arbitrary nature of its legal system

  • Power of individuals

Modern view: There was in fact a structured legal system, but was different to the Western way

• Legal codes cited for all judgements

• Legal review and supervision was mandatory

  • Judges were punished for ‘erroneous’ rulings

• Half of the codes were regulation of the official activities of government officials

• Emperor was the source of law as the mandate of heaven

  • He recognized the value of consistency and fairness

    • He didn’t want arbitrary individual power because it undermined his rule

• Rule of Law or Rule of man

Western legal framework was on the adjudicative mode of justice

Problems have been caused by using Western terminology in translating the Chinese system (Stephens)

• Contexts are very different because of the different framework of law

Easier to understand the logic of the Chinese legal system if viewed in the way of discipline rather than adjudication

4 objectives of disciplinary mode of justice:

• 1) Maintenance of the cohesion of the immediate group

• 2) Maintenance of the existing hierarchical structure of society

• 3) The maintenance of the authority

  • Authoritarianism

• 4) The preservation of existing social order (or harmony)

  • Wanted an harmonious society

There was discretionary power of people in the upper hierarchy to punish or reward

Punishments were seen as a means of education or correction for future deviant behavior

Deviance was seen as a disorderly offense rather than criminal offense because of the focus on behavior in Chinese culture

Punishments could be inflicted upon intention of offense

• Because of potential threat

Characteristics of disciplinary mode of justice:

• 1) Collective punishment, selective punishment or substitutive punishment

  • Punish parents, groups etc.

    • Made it easier to identify disorder

  • Actually seen in Western society historical too, so not unique to China

• 2) Legality of a judgment comes from the administrative hierarchy rather than due processes

• 3) Formal rules or codes do not legislate private or commercial matters as long as there is no implication on social harmony or political order

• 4) Rules can be internal or even secret

• 5) No limit to territorial sovereignty (personal law)

Not necessarily a “Rule of terror” or domination of the weak by the strong

There are however high costs to a relations-based system because of scale (John Li)

• Rule-based system had diminishing costs to scale as argued by Weber

  • Every case was on some principle and was open and transparent

Traditional view: There was no civil or commercial law because the State was interested purely in the penal codes

• Was not the responsibility to regulate ‘private matters’ as long as they posed no threat to the regime

Modern view: There was a system for civil and commercial law

• Magistrates were in charge of everything

• Could take any dispute to the magistrates and they would rule purely on reasoning not on legal code

  • Didn’t have to be reviewed

  • Didn’t involve punishment

  • So there was actually a functioning private law

  • Common law (Customary law) in West came from similar rulings

• More like intermediation (Didactic conciliation) than adjudication in the West

• Historians of the traditional view were looking for things similar to the West

• Large number of trials in county archives leads to conclusion that China seemed a “legalistic” society

Evoked general principles rather than legal rules

Problem of “...