A photo of Kang Youwei, a reformer of the late Qing Dynasty, who deeply realized the destructive effects on society brought by the abandonment of legal traditions Photo: FILE

In an article published in 1997, William P. Alford, a professor of Chinese law and legal history at Harvard Law School, noted that when he was engrossed in the study of Chinese legal history during his graduate period, renowned Sinologist Arthur F. Wright asked why such a seemingly intelligent young man like him was intent on wasting his time on Chinese legal history. Alford said that it was the first substantive issue he encountered during his graduate studies.

Wright (1913–1976) was an American, a Ph.D. of Harvard and a longtime professor at Yale. He was one of the founders of American Sinology. During his teenage years, he followed his parents to travel in China and Japan, where he fell in love with Buddhism and Oriental culture. He went to Beijing twice for advanced studies during his graduate education. Apart from English, his mother tongue, he was also proficient in Chinese, Japanese, French and German. In addition, he delved deep into ancient Chinese Buddhism and Confucian thought. 

No one would believe that Wright didn’t know about China, but his view that Chinese legal history was useless reflects a misunderstanding about the subject that was shared by other scholars.

Sinology was well-developed in the US, but studies on Chinese legal history were few and far between until the 1990s. Many academics turned a blind eye to the existence of law and legal life in Chinese history or marginalized them extremely. This was the situation in the West, and that in China was not optimistic either. 

Since modern times, intellectuals have often observed traditional Chinese law through tinted spectacles. Even now, most students and teachers at law schools in China have little idea about Chinese legal history. They know textbook doctrines only, taking for granted that ancient China featured rule of man, the arbitrary decisions of rulers and the checks of social conventions, and that law was predominantly criminal at the time. It is regrettable to see thousands of years of Chinese legal history summed up in such a simple way. Traditional Chinese law, in their eyes, provides nothing more than negative examples for modern law and legal thought.

Rites and law

While other Chinese intellectuals either misinterpreted ancient law in their criticism of Chinese legal traditions or appended it to a Western type of law, Ma Xiaohong, a professor of jurisprudence at Renmin University of China, got to the root of ancient Chinese law to reveal how traditional Chinese law should be seen in her book Li and Law: The Historical Connection of the Law that was published in a revised edition in 2017.

In the treatise, she made a distinction between ancient law and traditional law. Ma argued that ancient law was the real code that ruled traditional Chinese society, comprising the wisdom of Chinese ancestors. Ancient law as conceptualized and constructed by later generations became traditional law. 

In other words, ancient law is a fact, while traditional law results from the cognition, interpretation and reconstruction of researchers. There is only one fact, but interpretation varies due to use of different instruments or theories.

In this sense, any research of ancient law will be constructing traditional law. Ancient law was terminated with legal reforms and the Constitutional Movement in the late Qing Dynasty (1840–1911), while traditional law can take on different forms, depending on how researchers construct it. 

Nonetheless, many domestic scholars have constructed traditional Chinese law by referring to Western law and negating ancient Chinese law in most cases, in an attempt to find links to the West. However, the truly valuable traditional law should serve as a bridge linking ancient and modern Chinese law.

Based on rigorous historical documents on ancient law, Ma was committed to clarifying various misunderstandings about ancient law and reconstructing traditional Chinese law, meanwhile elaborating on the development and characteristics of traditional law to faithfully represent the real state of ancient law and Chinese legal traditions. 

In Ma’s opinion, ancient Chinese law included more than punishment and discipline. There were the forms of li (rites) and fa (law), but the two were not antagonistic to each other. Instead, they formed a complementary whole.

Fa contained concrete dynastic laws, codes, decrees and statutes, as well as family discipline, industrial rules, and village regulations and agreements. Li covered a broader range, referring first to national and institutional rites, including ceremonies in the central court and etiquette for different social strata. In imperial sacrifices, for example, people of different hierarchies were treated according to different standards in terms of food, clothing, residence and travel. Li also meant codes of conduct and rules for the daily interactions of ordinary people. It guided the pursuit of the values of traditional Chinese law, such as fairness and harmony. 

Li didn’t come from nothing. It originated from the teachings of sages and developed out of the public and private life of Chinese people over a long span of time. One was subject to the education and edification of li from birth and would follow its norm of conduct throughout life.

Li itself was also accepted or approved by the state, so it constituted the norm for the system of ancient Chinese law together with fa. Fa was law written by elites, integrating heavenly principles, human conditions and state laws while being enforced by state organs. Li regulated people’s behaviors in daily life. 

People conditioned each other, so the majority of civil disputes could be settled without the interference of state authority. In this way, a natural, harmonious order came into being. Under such order, traditional law was not only mandatory but a standard of considerate conduct. In addition to settling disputes and maintaining order, it ensured peace in one’s life and heart. This is where modern law falls short.

Harms of discarding traditional law

In the late Ming and early Qing dynasties, roughly the early 17th century, thinkers like Huang Zongxi began to criticize traditional law, regarding it as narrow or illegitimate. As national crises escalated in the late Qing period, intellectuals criticized tradition more fiercely.

During late Qing legal reforms, participants were in a heated debate about whether to retain articles of traditional law. Although the two sides eventually compromised, the resultant new law was based on a legal empiricism that advocated the separation between law and morality, and it was grounded upon individualism and the spirit of social contract. Traditional law was basically abandoned. 

After the Republic of China (1912–1949) was founded, traditional society broke up, and the uniformity and continuity of traditional law was cut off. The tension among warlords was accompanied by social turmoil and demoralization.

The tone against tradition remained unchanged. A bigger anti-tradition wave was seen in the May Fourth Movement, when all problems in China then were attributed to traditional Chinese culture. Under this atmosphere, the Six Codes were clarified in every detail, by judges most of whom had been educated abroad, but the legal situation during the republican period was unsatisfactory. Discarding legal traditions was one of the reasons for the chaos. 

At that time, legal knowledge was exotic and not localized. Many legislators received their doctoral degrees overseas. Fluent in foreign languages, they were acquainted with Western legal notions, but knew little about the daily life of ordinary Chinese people.

Concepts regarding Chinese economy, politics and society in traditional law were strange to them. They hoped to regulate and change the life of the common people with new laws, but many parts of the laws had nothing to do with public codes of conduct. The laws forced people to change habits and conventions that had been kept for thousands of years, so their life ran out of control and no good effects were achieved as a matter of course. The Westernized laws practiced in the Republic of China essentially broke from people’s everyday life, so they failed to pacify the Chinese people. 

After the Revolution of 1911, prominent thinker and reformer Kang Youwei (1858–1927) keenly felt the disorder and corruption in the Republican Era, contending that the undesirable situation was a consequence of destroying time-honored Chinese customs and conventions. It was ironic that the leader of the progressive Hundred Days’ Reform in the late Qing era had turned into a conservative who upheld traditional law. He deeply realized the destructive effects on society brought by the abandonment of legal traditions.

Kang’s view was biased yet thought-provoking. Since modern times, China has gone through several rounds of large-scale legal transplantation, an attempt made by lawmakers to reshape ordinary people’s lives, but the good intentions of Western laws has proven incompatible with national conditions in China. 

Law stems fundamentally from social rules, and society is a result of cultural and historical accumulation. All laws are inseparable from tradition, the origins of society. Chinese cultural traditions are like genes influencing every Chinese, so the law serving as the code of conduct for Chinese people’s lives should be based on Chinese culture. Traditional law is an important component of such genes.

Jin Xin is from the Institute of Central Asia at Shaanxi Normal University.

(Edited by Chen Mirong)