NCJ Number
66469
Journal
Hastings Law Journal Volume: 29 Dated: (JULY 1978) Pages: 1307-1329
Date Published
1978
Length
23 pages
Annotation
AN UNDERSTANDING OF LAW IN PRESENT DAY CHINA IS SOUGHT THROUGH A REVIEW OF THE THREE MAJOR PHILOSOPHIES, CONFUCIAN, LEGALIST, AND BUDDHIST, ON WHICH CHINESE LEGAL THOUGHT IS FOUNDED.
Abstract
THE LEGAL SYSTEM IN CHINA GREW OUT OF THE THOUGHTS OF THE LEGALISTS, WHO HELPED TO ESTABLISH THE FIRST EMPIRE. THE IMMEDIATELY FOLLOWING DYNASTY SAW A CONFUCIAN LEGALIST SYNTHESIS. THE OLDEST, CONFUCIAN, CONCEPT OF 'LI' REGULATES THE SOCIAL ORDER AND HUMAN RELATIONSHIPS BY AUTHORITY OF CUSTOM WITH THE FORCE OF LAW, FORBIDDING TRESPASSES BEFORE THEY ARE COMMITTED. 'LI' EMPHASIZES THE NATURAL ORDER AND MORAL RULES, CONSTITUTING A CODE OF ETIQUETTE AND RITUAL PROPRIETY ENFORCED BY SOCIETY RATHER THAN THE GOVERNMENT. 'FA,' ON THE OTHER HAND, PUNISHES CRIMINAL ACTS AFTER COMMISSION, WITH EMPHASIS ON GOVERNMENT BY DECREE, AS IT WAS ESTABLISHED BY THE LEGALISTS OF THE THIRD CENTURY HAN DYNASTY. THIS CONCEPTUAL DICHOTOMY OF 'LI' AND 'FA', COMPLEMENTING AND COORDINATING WITH EACH OTHER, HAS DOMINATED CHINESE LAW FOR 2,100 YEARS, REPRESENTING THE OLDEST CONTINUOUSLY SURVIVING LEGAL SYSTEM IN THE WORLD. IN ANY CONFLICT BETWEEN 'LI' AND 'FA,' TRADITIONAL CHINESE SOCIETY PREFERRED 'LI,' WHICH ALSO DOMINATED INTERSTATE RELATIONS. BUDDHA'S 'DHARMA' (TEACHING, LAW; CHINESE--'LU') BEGAN TO INFLUENCE CHINESE LAW IN THE FIFTH CENTURY. IT INTRODUCED A NEW ETHIC OF MOTIVATION BASED ON THE 'KARMA' (ACTION, DEED) OF THE MIND. BUDDHISM ALSO BROUGHT AN ALTERATION OF THE BASIC SOCIAL STRUCTURE. WHERE PREVIOUSLY ONLY STATE AND FAMILY AUTHORITY HAD EXISTED, THE BUDDHIST ORDER OF MONKHOOD ESTABLISHED A COMMUNITY INDEPENDENT OF EITHER AND GOVERNED BY ITS OWN CANON OF MONASTIC LAW, INCULCATING IDEALS OF UNIFORMITY, EQUALITY, AND SELF-DISCIPLINED INDIVIDUAL AUTONOMY. IN SUBSEQUENT CENTURIES, MAHAYANIST EMBELLISHMENTS OF THE BUDDHIST TEACHING IN CHINA POPULARIZED ESCHATOLOGICAL NOTIONS ABOUT THE DECAY OF ALL DOCTRINES AND THE IMMINENT ARRIVAL OF THE FUTURE BUDDHA. THESE GAVE RISE TO COMMUNISTIC PEASANT REBELLIONS AGAINST THE OPPRESSIONS OF LAW AND INSTITUTIONS. ATTITUDES IN CONTEMPORARY CHINA ECHO THE CHARACTERISTIC FEATURES OF ALL THREE PHILOSOPHIES. THE 'LI' OF MAO HAS REPLACED THAT OF CONFUCIUS; THE MASSES HAVE TAKEN PART IN THE FORMULATION OF 'FA.' ETHICS OF MOTIVATION HAVE BECOME 'THOUGHT REFORM' AND 'SELF-CRITICISM', INDIVIDUAL MERIT IS REWARDED, AND UNIVERSAL BROTHERHOOD REIGNS. WESTERNERS' ATTEMPTING TO UNDERSTAND CHINESE LAW TODAY MUST GO BEYOND THE SCRUTINY OF MERE STATUTES AND AIM AT INSIGHTS INTO THE NATURE OF CHINESE SOCIETY, HISTORY, AND PHILOSOPHY. FOOTNOTES ARE INCLUDED. (MRK)