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FINAL Chinese Legal History and Philosophy

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FINAL Chinese Legal History and Philosophy Table of Contents Introduction ................................................................................ 1! §1 Historical Background ......................................................... 5! I.! Influence of Ancient History on Contemporary Chinese Society ................................................................ 5! II. ! Spring and Autumn and Warring States Periods ......... 7! A.! The Spring and Autumn Period (770-475 BC) ........... 7! B.! The Warring States Period (475-221 BC) .................. 10! III.! From the Qin to the Qing Dynasty ................................. 14! A.! Legal Achievements of the Dynasties ........................ 14! 1.! Qin Dynasty (221-206 BC) .................................. 14! 2.! Han Dynasty (206 BC to 220 AD) ....................... 17! 3.! Interregnum .......................................................... 20! 4.! Tang Dynasty (618-907 AD) ............................... 22! 5.! Yuan Dynasty (1271-1368) .................................. 27! 6.! Ming Dynasty (1368-1644) .................................. 31! 7.! Qing Dynasty (1644-1911) .................................. 35! B. ! Summary ..................................................................... 44! IV.! Nationalist China ............................................................. 47! V.! The Mao Era (1949-1976) ................................................. 55! VI.! The Opening Up and Reform Era (1978-Present) ........ 59! A.! A Brief History of the Reform and Opening up Policy .......................................................................... 59! 1.! The Plan ............................................................... 59! 2.! Tiananmen Students Movement ........................... 61! 3.! Deng Xiaoping’s Trip to the South ...................... 63! B. ! Latest Developments .................................................. 64! 1.! WTO Accession ................................................... 64! 2.! Current Political Trends ....................................... 65! §2 Main Philosophical Concepts ............................................... 67! I. ! Confucianism ...................................................................... 67! I Hetzel: Chinese Legal History and Philosophy II. ! Legalism ............................................................................ 70! III. ! Taoism .............................................................................. 74! IV. ! Buddhism ......................................................................... 77! V. ! The Mandate of Heaven ................................................... 79! VI. ! Socialism (with Chinese characteristics) ....................... 82! Bibliography ............................................................................... 91! Annexes ....................................................................................... 95! Annex 1: The Dynasties in China ............................................. 95! Annex 2: Dynastic Codes ........................................................... 98! 2.1 The Content of the Tang Code (Tang Lü, ) ......... 98! 2.2 The Table of Contents of the Great Ming Code (Da Ming Lü, ) ....................................................... 101! 2.3 The Table of Contents of the Great Qing Legal Code (Da Qing Lü Li, ) ........................................ 103! Index ........................................................................................... 107! II Introduction The main objective in writing about Chinese legal history and philosophy is to comprehensibly explain Chinese history and thinking. After studying this book, the reader should have a feeling for Chinese views, especially an insight into Chinese legal and political thinking. By knowing the past one can get a better grasp on the present. To understand the legal system or political views of any country, it is essential to know its people‘s history and thoughts. Trying to understand Chinese law in particular without first having a basic idea about Chinese history and philosophy is a losing proposition, either due to one blindly believing that the written law is the only thing that matters or becoming frustrated with trying to understand Chinese law, because real life does not seem to align with the written law. A quick survey of literature shows that it is a common tendency to fall into one of these traps. They are hard to avoid indeed. In recent years the Chinese have been trying to reinvent themselves. After an era of destruction and failure, China has entered an era of rebuilding. In this situation – as well as in the preceding era of destruction – lies also the root for something very new, something that can be seen for the first time in China. Sociologically, everything has changed compared to imperial China. Old family and social structures have been transcended. Women now have the same rights as men; they can live with freedoms they had never experienced previously in Chinese 1 Hetzel: Chinese Legal History and Philosophy history. However, deep within the Chinese society, there is still deeply rooted traditional thinking. An illustration of this attitude can be seen in quite a special way when it comes to well- educated women. Female students and graduates think that their future husbands must have a formally higher degree than they have. So a female master‘s graduate will tend to search for a male doctoral graduate. In this equation, even the reputation of their respective universities matter. Female graduates with a PhD from a university with a mediocre reputation, can still acceptably marry a PhD graduate from an excellent university. This problem even influences the decision-making in regard to choosing an area of study as well as which level a woman will complete. The author himself met a bright young female student from Tsinghua University who said that she would not complete a master‘s degree because, if she did, she would not be able to find a suitable husband. The concept of guanxi ( ) 1 , a very typical Chinese phenomenon that foreigners hardly get access to, is one of those traps mentioned above. It describes a network of personal relationships; almost every decision made reflects this social characteristic. With regard to written legal rules, which one would be inclined to trust; they are often more seen as guidelines and do not necessarily have to be followed. This is especially disturbing for foreigners who are contracting with the Chinese. Guanxi does not rely on formal, institutional networks or 1 Guanxi is translated as: relation; relationship; to concern; to affect; to have to do with; relations. 2 Introduction connections between groups of people; it totally relies on the relationship between two individuals. Also, money and wealth are not important factors, only the individual relationship is crucial. Guanxi can develop as a result of having the same origin, such as having lived in the same village or attended the same university. If one has a good relationship to another person, this person might introduce one to another person from his ‘guanxi- network’ and vouch for the newly introduced person with his face. Guanxi is always based on mutuality. If one asks for a favor, one has to be willing to return it. It would be seen as inexcusable to not return a favor, which in turn would be fatal for one’s guanxi. Granting and returning favors is the key element of keeping guanxi alive. Guanxi is a dynamic that is very deeply rooted in Chinese minds as an ever-cycling and repeating balance of do ut des. Accordingly, Chinese have a cyclic view of history. It is widely believed in China that history repeats itself. Actually the view might be comparable to HEGEL’S philosophical approach of thesis, antithesis and synthesis. Accordingly, the Chinese believe that after a period of decline that started at the beginning of the 19th century, China will reoccupy its predetermined place as the leading nation in the center of the international community. The surprising thing about this view of global history (and of course of Chinese history) is that all available data, and the outlook after the last 30 years of reform and opening up, suggests that the Chinese are right. They might easily be the next dominating power. 3 Hetzel: Chinese Legal History and Philosophy Also, traditional thinking is re-emerging in China. Even the Communist Party and state officials support Confucian thinking and promote stability and security with the help of the ancient and most known Chinese philosophers. Not only within Chinese borders, but also outside China, Confucius supports Chinese interests. China has established more than 320 so-called Confucius Institutes in 94 countries around the world. These institutions are often organized in partnership with universities and offer Chinese language courses and insights into Chinese culture. The Chinese government actively promotes the Confucius Institutes. Even Chinese universities organize trips to the headquarters of the Confucius Institutes in Beijing for foreign students enrolled in one of their programs for foreign students.2 2 For further information: http://www.chinese.cn. 4 .
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