Yoon, Angela 2020 Asian Studies Thesis Title: "Harmony is Most Precious" : People’s Mediation and the Confucian Revival Advisor: Sam Crane Advisor is Co-author/Adviser Restricted Data Used: None of the above Second Advisor: Release: release now Authenticated User Access (does not apply to released theses): No Contains Copyrighted Material: No 1 “HARMONY IS MOST PRECIOUS” PEOPLE’S MEDIATION AND THE CONFUCIAN REVIVAL by Angela L. Yoon Professor Sam Crane, Advisor A thesis submitted in partial fulfillment of the requirements for the Degree of Bachelor of Arts with Honors in Asian Studies WILLIAMS COLLEGE Williamstown, Massachusetts May 5, 2020 2 Table of Contents Acknowledgements……………………………………………………………………………..3 Introduction……………………………………………………………………………………5 Chapter 1 ……………………………………………………………………………………. 12 Informal Mediation in the Qing Dynasty……………………………………………...14 Law, Culture, and Legal Culture in Imperial China……………………………………21 Re-evaluating the Link Between Mediation and Confucianism ………………………. 30 Chapter 2 ……………………………………………………………………………………. 46 Te Rise of People’s Mediation ………………………………………………………..48 Encounters with Legal Reform ………………………………………………………..57 People’s Mediation and the “Harmonious Society” ……………………………………65 Chapter 3 ……………………………………………………………………………………..77 Te Culture Fever and Questions of Modernity ……………………………………….79 Te Confucian Revival as a Project of Cultural Nationalism …………………………..83 Contemporary People’s Mediation …………………………………………………….90 Conclusion …………………………………………………………………………………..107 Works Cited …………………………………………………………………………………111 3 Acknowledgements To my advisor, Professor Crane. A million thanks to you for helping me get this far. Tis project was by far one of the most memorable highlights of the year, and I could not have finished it without your endless guidance, wisdom, and advice. You were always patient with me, you challenged me to think outside the box, and you helped so many times to structure my chaotic thoughts into a fully-fledged thesis. And for all of that, thank you; I couldn’t have had a better advisor. To my friends, my angels. Tank you for the warmth, for the late-night talks, for the morning coffee dates, for picking me up when I fall, and for making me laugh during these crazy and unprecedented times. You’ve spent countless hours listening to my frustrations, hopes, and dreams, and I hope I can always do the same for you. To my mom and dad. Being over 6,000 miles away from you for most of the year was never easy, but your love for me could be felt anywhere. You remind me everyday what it means to be human, to love and be loved, to challenge and be challenged. You remind me what it means to be a good daughter and sister, and I will carry that on with me forever. I always, always want to make your proud. To Andy. You inspire me in more ways than you might ever know. 4 Note In this thesis, I follow China’s customary naming practices, in which the last name comes before the first name—e.g. Mao Zedong and Deng Xiaoping. In terms of romanization, I follow the pinyin system to reflect the ways in which names and terms are romanized in the People’s Republic of China—for example, I write Mao Zedong instead of Mao Tse-tung. 5 Introduction Confucius once said, “In hearing a case, I am like any other person. What is necessary, however, is to cause the people to have no litigations.”1 While this is just one of many aphorisms from the Analects, its significance is rooted in the fact that it has been invoked—directly and indirectly—by virtually every emperor, Communist leader, and president throughout China’s history. Indeed, as many legal scholars have noted, Confucian values are woven into the very fabric of Chinese legal theories: the ideal Confucian state was imagined to be perfectly harmonious, and the ideal Confucian gentleman “was someone who would not stoop to disputes; he would rise above them by conciliation (rang) and forbearance (ren),” and he would seek, above anything, to inspire harmony (he).2 In a legal context, these ideals have translated into an age-old emphasis on resolving civil disputes extrajudicially, before appealing to litigation. Yet even with centuries of trials and transformations, mediation still reigns supreme as a widely used method of dispute resolution in China, having survived both Maoist legal nihilism and an era of reforms inspired by the Western rule of law paradigm. Why has mediation persisted as the nation’s dominant form of dispute resolution, and how has it been able to triumph over every test of time, every political regime? Even after the legacies of Maoist thought and heated discussions about the rule of law, what is the reason behind the CCP’s continued emphasis on mediation within the last decade? Te modest but growing body of literature on Chinese mediation practices is a testament to its importance in contemporary discussions about civil law in China. But existing literature does not always capture the contours of China’s constantly evolving legal system: some accounts portray the current emphasis on mediation as a static reflection of deeply-rooted Confucian thought, while others have used China as an example of a legal system unwilling to and incapable of keeping up with 1 Te Analects 2:13 2 Philip C.C. Huang, “Court Mediation in China, Past and Present,” Modern China 32, no. 3 (July 2006): 278. 6 the times. What existing literature often writes out, and what this thesis interrogates, is the multidimensional nature of the relationship between Confucianism, mediation, and modernity. Te aim of this thesis is threefold: first, to trace the historical precedents and evolution of People’s Mediation, an institution that was established in the 1950s as a distinctly “Maoist" legal instrument; second, to explore the effects of the Confucian Revival on contemporary People’s Mediation; and finally, to situate these effects within China’s quest for legal modernity. Te foundation of Chinese law is a constellation of different factors—certainly much more than this thesis can articulate—but it is evident that Confucian rhetoric currently plays an unequivocal role in assigning mediation a special place within China’s dispute resolution system. Using this observation as a starting point, this thesis attempts to better understand how mediation has been renegotiated and reimagined in contemporary times, when modernity continues to demand the jurisprudential ideal of the “rule of law.”Tis puzzle can be examined against the resurgence of Confucius in political and academic discourse in recent years. Background and Structure To establish the historical context necessary for an understanding of contemporary People’s Mediation, this thesis will begin with an examination of mediation in Qing China (1644-1911), where Confucianism was deeply entrenched in all corners of social and political life. To this end, I rely primarily on secondary sources on community mediation and Chinese civil law at large during this time frame. One leading scholar on imperial Chinese law is Philip C.C. Huang, who has conducted extensive research on both judicial and extrajudicial mediation from the 1760s to 1900s based on civil case records from three counties: Baxian (in Sichuan), Baodi (near Beijing), and Xinzhu (in Taiwan).3 While Huang’s research confirms that there was indeed a strong emphasis placed on informal (extrajudicial) and semiformal mediation, he also successfully 3 Philip C. C. Huang, Civil Justice in China: Representation and Practice in the Qing, (Stanford: Stanford University Press, 1996), 3. 7 complicates reductive claims about imperial Chinese law, as well as “official” narratives about the relationship between Confucianism and mediation. Tese official narratives paint community mediation as an instrument for or expression of Confucian notions of compromise and renqing —“the kinds of courtesies and considerations that help to maintain peaceable day-to-day human relations.”4 Yet, as this first chapter illustrates, there is much more to be said about the lived realities of community mediation during this era—its implications for the average disputant, its relationship to the state, and the diverse collection of factors that led to its popularity. Why specifically the Qing Dynasty—not before or after? Qing China, in many ways, embodied a compelling liminal identity that warrants scholarly attention. One one hand, the Qing inherited a Confucian state ideology from its predecessors and allowed traditional values to shape its legal system. On the other hand, the Qing was in many ways a transition into modern China; many scholars agree that Qing China witnessed profound commercial development and political centralization, both of which contributed to unparalleled developments in the law and conceptions of justice. At the same time, it began to confront the realities of Western imperialism, modernity and modernization, and legal rationality, experiencing firsthand the profound tensions between tradition and change. It is thus the Qing Dynasty that best illuminates its complex philosophical underpinnings and its role in China’s civil legal system at large. While the Republican era (1912-1949) could also offer critical perspectives on China’s dispute resolution system, the warlordism, Japanese invasion, and major civil war that affected the nation during this time may preclude a focused analysis on mediation. Furthermore, as Huang notes, even against the backdrop of numerous political and judicial reforms, “community mediation still played a significant role in the justice system as a whole” during the Republic.5