Ho on Chinese Legal Thought in the Han-Tang Transition: Liu Song's Theory of Adjudication

Norman Ho, Peking University School of Transnational Law, is publishing Chinese Legal Thought in the Han-Tang Transition: Liu Song's (D. 300) Theory of Adjudication in volume 35 of the UCLA Pacific Basin Law Journal (2018). Here is the abstract.

This article explores and analyzes the fourth century Chinese legal official and legal scholar Liu Song’s (d. 300) theory of adjudication through a full translation into English (the first translation of its kind) of his famous “Memorial on Adjudication,” which urged judicial and legal reforms during the reign of Emperor Hui (r. 290–306) of the Western Jin dynasty (265–316). This article argues that Liu believed that written law should reign supreme over other factors (e.g., societal needs, public opinion) in adjudicating cases. He was also one of the first major Chinese legal thinkers to explicitly set forth what we would today call the “legality principle.” But while Liu’s theory of adjudication was centered on written law, it was also motivated by a desire to control the power and discretion of judicial officials and preserve the authority of the emperor. Liu’s theory of adjudication is significant in the history of Chinese legal thought as it runs counter to the so-called “qing-li-fa” (QLF) theory of adjudication, which has strongly influenced contemporary theoretical accounts and descriptions of traditional Chinese law as a whole. This article also briefly considers Liu’s theory in a comparative legal theory perspective, arguing that Liu’s theory is different from key Western theories on adjudication— namely, Hart’s and Dworkin’s theories of adjudication with respect to hard cases. Finally, this article also briefly discusses the relevance of Liu Song’s legal thought to 21st century Chinese law, given the current Chinese leadership’s penchant for using traditional Chinese political and legal philosophy as sources and justifications for government and administration. This article suggests that Liu Song is a figure whose legal thought could be equally palatable to rule of law reformers and more conservative party officials in China today.

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Ruskola on Corporation Law in Late Imperial China

Teemu Ruskola, Emory University School of Law, is publishing Corporation Law in Late Imperial China in Research Handbook on the History of Corporate and Company Law (Harwell Wells, ed., Edward Elgar Press, 2018). Here is the abstract.

According to received wisdom, there is no such thing as a Chinese tradition of corporation law. In Max Weber’s pithy conclusion, “The legal forms and societal foundations for capitalist enterprise were absent in traditional China.” Although this claim is intuitively appealing, it is incorrect, or at least wildly exaggerated. Drawing on earlier work, I argue in this chapter that in late imperial China there existed a tradition of “corporation law,” to use a term that admittedly sounds anachronistic. Conventional wisdom to the contrary notwithstanding, and despite Confucian hostility to commerce, even before the introduction of European law at the turn of the century, the Chinese operated “clan corporations,” or relatively large commercial enterprises whose existence was justified by the legal fiction of kinship. Because of this fiction, these enterprises were governed by the norms of family law which in turn performed many of the key functions of corporation law.

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Barnhizer On Political Correctness and Freedom of Speech

David Barnhizer, Cleveland-Marshall College of Law, has published 'Something Wicked This Way Comes': Political Correctness and the Reincarnation of Chairman Mao as Cleveland-Marshall Legal Studies Paper No. 291. Here is the abstract.

There could not possibly be any parallel between the actions of Mao Tse Tung’s young Red Guard zealots and the intensifying demands of identity groups that all people must conform to their version of approved linguistic expression or in effect be condemned as “reactionaries” and “counter-revolutionaries” who are clearly “on the wrong side of history”. Nor, in demanding that they be allowed to effectively take over the university and its curriculum while staffing faculty and administrative positions with people who think like them while others are subjected to “re-education” sessions that “sensitize” them into the proper way to look at the world’s reality, should we judge students and protesters such as those who submitted fifty Demands to the University of North Carolina to be in any way akin to the disastrous, repressive, immature and violent members of the Red Guard who abused China between 1966 and 1976. Nonetheless, though it would be unfair to compare the two movements, the Cultural Revolution does send out a warning we should perhaps spend a little time thinking about lest we repeat some of its errors. A brief descriptive capsule appears below. “The first targets of the Red Guards included Buddhist temples, churches and mosques, which were razed to the ground or converted to other uses. Sacred texts, as well as Confucian writings, were burned, along with religious statues and other artwork. Any object associated with China’s pre-revolutionary past was liable to be destroyed. In their fervor, the Red Guards began to persecute people deemed “counter-revolutionary” or “bourgeois,” as well. The Guards conducted so-called “struggle sessions,” in which they heaped abuse and public humiliation upon people accused of capitalist thoughts (usually these were teachers, monks and other educated persons). These sessions often included physical violence, and many of the accused died or ended up being held in reeducation camps for years.” I never thought I would be starting off an analysis by citing a description of the Red Guard’s re-education and thought control actions in Mao Tse Tung’s 1966-1976 Cultural Revolution and the words of Lesley Gore’s “You Don’t Own Me” song. But in the context of what is going on in American and European societies involving the comprehensive strategy to control freedom of speech through formal and informal mechanisms of power, Gore’s slightly edited (for length) language seems highly appropriate. Her in-your-face paean to independence of thought and action captures what we face.

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Norman P. Ho on State of Nature Theory in Chinese Political and Legal Thought

Norman P. Ho, Peking University School of Transnational law, has published State of Nature Theory in Traditional Chinese Political and Legal Thought at 8 Northwestern Interdisciplinary Law Review 131 (2015). Here is the abstract.

State of nature theory has served as an important theoretical foundation for various political theories. It is usually used to justify the development and existence of certain political institutions and/or to explain why and how a government could come into being from a state of nature. While numerous studies have examined the role of state of nature theory in Western political thought — most notably, in the political thought of Thomas Hobbes and John Locke — very few studies have examined state of nature theory in Chinese political thought. This Article argues that certain traditional Chinese thinkers did in fact explicitly set forth state of nature arguments as theoretical foundations and justifications for their political thought. It describes and analyzes the state of nature theories of three important traditional Chinese thinkers: Mozi (c. 480-390 B.C.), Xunzi (c. 4th to 3rd century B.C.), and Liu Zongyuan (773-819 A.D.). It also compares their respective state of nature theories with one another, as well as with those of Hobbes and Locke. It concludes with a discussion of the implications of its findings on Chinese political and legal theory more broadly.

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Jiang and Hsu on Lorenz von Stein and Chinese Constitutional Legal History

Daw-Yij Jiang and Kuo-Ching Hsu, both of NAtional Sun Yat-sen University, have published Lorenz Von Stein and Chinese Constitutional Movement: A Reexamination of Legal History. Here is the abstract.

This article aims to explore the relationship between Lorenz von Stein and Chinese constitutional movement. It will undertake an historical comparison of events in order to interpret the development of the Chinese constitution during the late Qing and the early period of the Chinese Republic. It is well known that the Chinese constitution (1905-1916) was greatly influenced by the Meiji constitution, but it is often overlooked that the Meiji constitution was actually directly influenced by the German constitution, especially by Stein’s thoughts on political theory. It has always been acknowledged that Stein had an influence on Chinese constitution; however, the relationship was often associated with the connection between Germany, Japan, and China. In this article, we try to explore his influence on those who drafted the Meiji constitution to further understand Stein’s indirect influence on the Chinese constitution through those Japanese pioneers. In particular, we discover the dynamic law of historical change which presents in Stein’s writings, if we review the interactive law between state and society in the Chinese constitutional history.

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Ryan Mitchell on Legal Activism and Demands for Rights in Manchukuo, 1931-1945

Ryan Mitchell, Yale University, has published Legal Activism and Rights Consciousness in a 'Puppet State': Law in Manchukuo's Civil Resistance, 1931-1945. Here is the abstract.

Though a crucial element in Japan’s gradual early 20th century military and economic encroachment on China, the “puppet state” of Manchukuo was also paradoxically characterized by a high degree of legitimizing legal rhetoric. While its political realities generally failed to reflect these idealized foundations, in some capacities the regime actually did provide significant space for legal and other forms of civil society resistance, including by Chinese legal professionals. In order to better understand the early reception of Western, rights-based concepts of law’s social function in East Asia, then, Manchukuo is a valuable subject of study. As this Article shows, there is evidence of at least germinal development of a kind of rights-oriented legal activism that, in the Chinese context, is often viewed as first emerging only in the late-20th century Reform Era.

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Dispute Resolution In Chinese Courts

Matthew S. Erie, Princeton Institute for International and Regional Studies, is publishing Muslim Mandarins in Chinese Courts: Dispute Resolution, Islamic Law, and the Secular State in Northwest China in Law and Social Inquiry. Here is the abstract.

Many sociolegal studies have investigated the relationship between state law and informal law, examining alternative dispute resolution and popular justice as intersections between state law and informal law. However, such questions have received little attention in East Asian authoritarian states. I use the case of dispute resolution among Chinese Muslim minorities (the Hui) to re-examine the relationship between state law and Islamic law. Based on nineteen months of fieldwork in Northwest China, I argue that the Hui case shows codependence between the types of law. Law is deeply embedded in social relationships between the Hui and the Party-State. An analysis of personalistic relationships shows the ways in which religious and secular authorities access each other, transforming each other’s law to augment their own legitimacy, but not without the potential for violence. The China case illuminates dynamics between Muslim communities and states that are prevalent elsewhere, particularly in the post-9/11 period.

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Criminal Law in the Tang Dynasty

Norman P. Ho, Peking University School of Transnational Law, is publishing Understanding Traditional Chinese Law in Practice: The Implementation of Criminal Law in the Tang Dynasty (618-907)in volume 32 of the UCLA Pacific Basin Law Journal (2015). Here is the abstract.

The Tang dynasty (618-907) is regarded as one of China’s most powerful and cosmopolitan dynasties – its achievements in the areas of literature, culture, economic development, and empire-building have influenced subsequent dynasties. The area of legal development is also not an exception – the Tang Code, a penal code which was promulgated in its finalized form in 653 and is the oldest imperial Chinese legal code to survive to the present-day in its entirety – is regarded as an apex in the development of traditional Chinese law. Indeed, the Tang Code served as model penal code for later Chinese dynasties, and the philosophical spirit animating some its provisions continues to influence modern Chinese criminal law today. Given the importance of the Tang Code and the Tang dynasty more generally, it is not surprising that much has been written about the Tang Code and Tang law. Most scholarship, however, has tended to focus on the history of codification and, more specifically, the Tang Code itself – for example, studying its various provisions, the philosophical bases and justifications behind its various provisions, and so forth. Less scholarship has been done to understand how the Tang Code was actually implemented and applied in society and to answer questions such as whether the application of justice (as mandated by provisions of the Tang Code) was applied consistently. Drawing on and introducing various selected historical sources (many of which have never been translated to English), this Article attempts to address these questions and to discuss the implementation of law in traditional China as viewed through enforcement of criminal law and criminal procedure (as set forth in the Tang Code) in the Tang dynasty. This Article argues that the Tang Code seems to have been applied inconsistently in criminal law cases and that there appears to have been discrepancies between what the Tang Code required and how criminal law was actually implemented and enforced in Tang society. Officials tasked with deciding criminal law cases still appear to have had substantial discretion in implementing the Tang Code. These inconsistencies and discrepancies are perhaps a testament to the diversity of approaches for governance and regulation in the Tang, which is not surprising given the geographic size and diversity of the Tang empire. Finally, given the current Chinese leadership’s proclivity for citing what it considers politico-legal models in the Chinese past, it is an especially important time to enhance and better our understanding traditional Chinese law – this Article is ultimately based on the premise that we can only arrive at a full understanding of traditional Chinese law by looking at the application of historical statutes and legal provisions in practice in actual cases, and not simply focusing on the statutes and legal provisions in a vacuum.

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