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2017 | OriginalPaper | Buchkapitel

12. The Western Law in China: Transplantation or Transformation

verfasst von : Zhangrun Xu

Erschienen in: The Confucian Misgivings--Liang Shu-ming’s Narrative About Law

Verlag: Springer Singapore

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Abstract

In talking about the predicaments caused by a transplantation of the Western politico-legal system into China, Liang Shu-ming always spoken in a voice different from his contemporaries. Through examining the true cases which occurred in his time, Liang Shu-ming was sensible and aware of the cruxes of this predicament in the light of his paradigm concerning the relationship between life and mind, and fact and norm. In this chapter, I shall start with a synthesis and restatement of four cases, that Liang Shu-ming exemplified in his different works, before we explore his analysis about the predicament in terms of the dichotomies above. It will be worthwhile considering whether he cast any new light on the solution to China’s predicament.

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Vorheriges Kapitel The Roots of the Western Legal Spirit

LSM, “The First Road that will Not Work for Us Politically” (1930), fn. 1, at 5: 166.

LSM, ibid. at 167. Also cf. “The Problem of China’s Local Self-government” (1932), 5: 338; “Coincidence of Politics and Moral Cultivation” (1935), 5: 676.

LSM, The Theory of Rural Reconstruction (1937), 2: 324.

Here the original words of Liang Shu-ming used to describe this kind of people are “nianshu de lao xiansheng 念书的老先生”, which refers to the old scholastic gentleman who is both a moral exemplar and an intellectual. As a matter of fact, these people as shi (士) had taken the role of charisma in the traditional Chinese society and had enjoyed high prestige and commanded universal respect. Cf., Chap. 2 of the book.

LSM, ibid. The Theory of Rural Reconstruction (1937), 2: 325.

See in general, LSM, “Our Two Great Difficulties” (1935), 2: 573–585.

LSM, The Theory of Rural Reconstruction (1937), 2:326–329; “Our Two Great Difficulties” (1935), 2: 574–575, 581–589; “Warning to Those Who Now Talk of Local Self-government” (1930), 5: 249.

LSM, Eastern and Western Cultures and Their Philosophies (1921), 1: 335–337.

LSM, “Warning to Those Who Now Talk of Local Self-government” (1930), 5: 241; “The Problem of China’s Local Self-government” (1932), 5: 311–312, 314.

LSM, “Warning to Those Who Now Talk of Local Self-government” (1930), 5: 241.

LSM, “My Personal Concern” (1934), 5: 533–534.

LSM, “The Problem of China’s Local Self-government” (1932), 5: 321–324.

LSM, “Warning to Those Who Now Talk of Local Self-government” (1930), 5: 244.

LSM, “Warning to Those Who Now Talk of Local Self-government” (1930), 5: 242.

Cf., section True nature in Chap. 6 of this book.

LSM, The Theory of Rural Reconstruction (1937), 2: 161.

LSM, “The Problem of China’s Local Self-government” (1932), 5: 329.

LSM, ibid., at 325.

LSM, “A Few Problems of Rural Reconstruction at Present” (1934), 5: 591.

For these two terms cf. Chap. 2 of the book.

LSM, “The Problem of China’s Local Self-government” (1932), 5: 325.

LSM, ibid., at 325–326.

LSM, ibid., at 326–327.

LSM, ibid., at 328.

Jiang Ting-fu, “KMT and Members of KMT”, in 176 Review of Independence (November 1935), at 14.

In fact, C.K. Yang, an American-trained sociologist, found in the late 1940s that much of the Chinese peasantry, including those dwelling in villages near Nanjing (then the nation’s capital) remained generally indifferent to and ignorant of political affairs. For details see in general C.K. Yang, A Chinese Village in Early Communist Transition.

For this paradoxical situation Ray Huang presented a very penetrating discussion by taking the Tang Dynasty as a good example. Even if the layout and conduct of government in Tang were brilliant, as he says,

But an alert reader will have no difficulty in seeing that these are not the kind of checks and balances that we are accustomed to nowadays. No component of the Tang government represented the divergent interests of the constituencies, and therefore an independent judiciary could not have emerged from such a matrix. …Yet it was not that the Chinese were by nature averse to representative government. We have already noted that the Han had tried, through its recommendation system, to spread its recruitment of officials to wide geographical regions. Technically, however, a deliberative assembly could not have been attempted when the bulk of the population was composed of farm households who owned several acres of land each, and there were many millions of those. To accept proper qualifications above that level would have confirmed jianbin, or the reduction of self-cultivators into tenants, which in the past had robbed the empire of a homogeneous tax base and rendered the bureaucratic management unworkable. A period of prolonged disunity had been its consequence. Tang, having institutionalized the civil service examinations and consolidated the power of appointment, found Confucian morality more than ever an essential guideline to its governance.

For further details see China: A Macro History, at 104 seq.; also cf., Xu Zhang-run, “Two Views on Constitutional Government before and after the War of Resist-Japanese Invasion”, and “Talk Law, Live Law and Make Law”.

According to Liang Zhi-ping, the traditional Chinese law could be clarified into two types: civil law and state law. Here “civil law” referred to a kind of customary laws which appeared in traditional Chinese society in opposition to the statutory law. For a detailed description and analysis see his The Customary Law in Qing: Society versus State. Also cf., in general, Kathryn Bernhardt and Philip C.C. Huang, “Civil Law in Qing and Republican China: the Issues”; Hugh T. Scogin, “‘Civil Law’ in Traditional China: History and Theory”; Mark A. Allee, “Code, Culture and Custom: Foundations of Civil Case Verdict in a Nineteenth-century County Court”, here all quoted from Kathryn Bernhardt and Philip C.C. Huang (eds.), Civil Law in Qing and Republic China.

LSM, “The First Road that will Not Work for Us Politically” (1930), 5: 166; “Warning to Those Who Now Talk of Local Self-government” (1930), 5: 247–249; “Personal Statement on Assuming the Editorship of this Publication” (1930), 5: 19; “Has There Been Village Self-government in Chinese History?” (1934), 5: 587; Essential Meanings of Chinese Culture (1949), 3: 93.

For details and the analysis about this issue see Yin Yi-jun, “Legal Transplantation and Judicial Reformation”, in 12 Dushu (Readings, Beijing) 1997, at 75–79.

For a detailed description of this situation see Professor Sun Guo-xiang, “The Difficulties of Defending the Accused in Criminal Procedure in Contemporary China”, in 11 Nanjing University Law Review 1999, at 161–169.

Cf., Chap. iv “Defense and Representation” of Criminal Procedure Law of PRC (1996); about this issue I have conducted interviews with my colleague, Professor Fan Chong-yi, one of the drafting team of this law, in 12 December 1995; 20 July 1996; 15, 16 August 1997, respectively.

LSM, “An Account in My Own Words” (1934), 2: 27.

LSM, “The Problem of China’s Local Self-government” (1932), 5: 334.

LSM, ibid.

Professor Yu Ying-shi, in a very Weberian way of dealing with the Protestant ethic and capitalism, suggested that there was a considerable conformity between Confucianism and “capitalism”. For the details of his convincing arguments see his “The Religious-ethics in Recent Centuries of China and the Characteristics of Tradesmen”, in his selected works The Modern Interpretations on the traditions of Chinese Thought, at 259–404. For a focusing study on this issue from a multi-dimensional and inter-disciplinary perspective cf., Liu Xiao-feng et al. (eds.), The Transformation of Economic Ethics in Modern China: Economic Ethics and Modern Chinese Society.

In The Theory of Rural Reconstruction, Liang Shu-ming emphasised time and again the necessity of a combination between politics and economy in the process of reconstructing a new institutional world for China. For details see at 2: 494–495, 517, 561–564; and cf. his “Purpose and Objectives of College of Henan Village Self-government” (1929), 4: 905–913; “The Line of Chinese Economic Reconstruction” (1937), 5: 984–996.

LSM, “The Problem of China’s Local Self-government” (1932), 5: 337–338; “What Is the Coincidence of Politics and Moral Cultivation” (1935), 5: 689–692; “Coincidence of Politics and Moral Cultivation” (1935), 5: 670–678. For an opposite argument cf., Lin Yu-sheng, “Coincidence and Separation of Politics and Moral Cultivation”.

LSM, “The Problem of China’s Local Self-government” (1932), 5: 340.

Ibid.

For an understanding of Liang Shu-ming’s concept Will (意欲), I would quote a paragraph from Professor Alitto, who gave us an illustrative explanation:

The category of “culture” was the basis of Liang Shu-ming’s theory, which he built on the metaphysical foundations of Wei-shih Buddhism—the concept of the cosmos in eternal flux. He posited an anima mundi comparable to Schopenhauer’s concept of will; all life was an expression of this blind force. The struggle between the individual embodiments of the Will and encountered obstacles to fulfillment, constituted the life process. The spirit—or unfulfilled Will—makes demands on the environment and overcomes the environment’s obstacles to fulfillment in a continuous interaction between demand and response. The life process, then becomes an unending sequence of problems presented to individual expression of the Will. Culture—“a way of life”—is the way in which people resolve the contradictions between the Will’s demands and the obstacles presented by the environment. Cultural differences are due to differences in the “direction” of the Will—or the way the Will attempts to deal with the environmental obstacles.

For the detailed analysis see his The Last Confucian: Liang Shu-ming and the Chinese Dilemma of Modernity, at 83 seq.

LSM, “The Problem of China’s Local Self-government” (1932), 5: 338, 339, 343. Cf., Li Yuan-ting and Yan Bing-hua, A Chronological Biography of Mr. Liang Shu-ming, at 225, 227.

LSM, “The First Road that will Not Work for Us Politically—the European Road of Modern Political Democracy” (1930), 5: 163.

H.L.A. Hart, The Concept of Law, at 181–182. Cf., Giorgio Del Vecchio, “The Homo Juridicus and The Inadequacy of law as A Norm of Life”, in 11 Tulane Law Review (1937), at 503 sq. Quoted from Jerome Hall (ed.), Readings in Jurisprudence, at 929–934.

For instance, he mentioned it in “The First Road that Will Not Work for Us—the European Road of Modern Political Democracy” (1930), 5: 167; “The Problem of China’s Local Self-government” (1932), 5: 338; “Coincidence of Politics and Moral Cultivation” (1935), 5: 676; The Theory of Rural Reconstruction (1937), 2: 326–329.

Cf. fn., 47 of this part.

“Warning to Those Who Now Talk of Local Self-government” (1930), 5: 249.

Titel: The Western Law in China: Transplantation or Transformation
verfasst von: Zhangrun Xu
Verlag: Springer Singapore
Buch: The Confucian Misgivings--Liang Shu-ming’s Narrative About Law
Print ISBN: 978-981-10-4529-5

Electronic ISBN: 978-981-10-4530-1

Copyright-Jahr: 2017
DOI: https://doi.org/10.1007/978-981-10-4530-1_12

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