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Week 7 Lecture Notes – Law And Property Rights Notes

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EH207: Topic 7 - Law and Property Rights

Topic 7 - Law and Property Rights Traditional Chinese Law

Legalist vs. Confucianist  Two competing philosophical theories contrasting each other Legalist: o Law is an instrument of power o Good taxation was important o Imperialism o Punishment would create fear and discourage bad behavior o Represented the ruler's fiat (Fairbank, 1960) Confucianism: o Fear of punishment shouldn't be the focus o 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 o Should not be compared to Western legal code The original meaning of the word punishment in Chinese has been now been mistranslated as law o 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 o 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 o Legal codes cited for all judgements o Legal review and supervision was mandatory
 Judges were punished for 'erroneous' rulings o Half of the codes were regulation of the official activities of government officials o 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 o Rule of Law or Rule of man

China: Disciplinary Mode of Justice

Western legal framework was on the adjudicative mode of justice

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