Zhang on The Private Law Influence of the Great Qing Code @ZhangTaisu @YaleLawSch @CambridgeUP

Taisu Zhang, Yale Law School, has published The Private Law Influence of the Great Qing Code in The Making of the Chinese Civil Code 249-268 (Hao Jiang & Pietro Sirena eds., Cambridge Univ. Press, 2023). Here is the abstract.

This chapter considers the socioeconomic functionality of legal codes and codification through the lens of late imperial Chinese legal history. Specifically, it asks whether formal legal codes can wield significant influence over private socioeconomic behavior despite being poorly enforced—or even unenforced—and whether such influence derives, in part, from the symbolic value of codification itself. It argues that the answer to both questions is likely “yes,” at least in the context of Qing Dynasty private law. This contains potentially generalizable insights into the nature of legal authority and prestige, some of which may potentially be applied to the recent passage of the Chinese Civil Code in 2020.

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Ohnesorge on Regulation of the Legal Profession in China @WisconsinLaw

John K. M. Ohnesorge, University of Wisconsin Law School, is publishing Regulation of the Legal Profession in China: An Historical Overview in the China Law & Society Review. Here is the abstract.

This essay begins with an exploration of the role of law and “proto lawyers” in imperial China, followed by a survey of the legal profession and its regulation in Republican China before 1949 (Section II). Section III addresses lawyer regulation during the high tide of Soviet and the Maoist influence (III.A.), and in the post-1978 reform period (III.B. and III.C.), including the regulation of foreign lawyers and law firms in the China market. Section III.D. turns to developments since Xi Jinping took power in 2012, and Section IV offers concluding observations.

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Mitchell on Vast Imperium: The Origins of Modern Chinese Conceptions of Sovereignty and International Law in Guangxu Era Geopolitics

Ryan Mitchell, The Chinese University of Hong Kong (CUHK), Faculty of Law, is publishing Vast Imperium: The Origins of Modern Chinese Conceptions of Sovereignty and International Law in Guangxu Era Geopolitics in volume 14 of the Tsinghua China Law Review (2023). Here is the abstract.

Accounts of the transmission of Western notions of sovereignty and international law to China often focus heavily on Anglo-American initiatives in the period of the Opium Wars, skimming over the complex transnational interactions of the late 19th century. However, key events of the 1870s-1890s played a crucial role in rapidly changing discourses of international legal order and statehood in China. Only then were important terms for concepts such as “autonomy,” “territory,” and indeed “sovereignty” (zhuquan, 主权) itself, first used in official contexts with their current implications. Such uses were prompted by encounters between Qing officials and various foreign empires, often revolving around competition to define and control the vast but loosely governed Qing space. This article suggests a new emphasis upon these transnational encounters, especially certain diplomatic interactions between the Qing and Meiji Japan, as pivotal and paradigm-changing moments in China’s modern legal history. Analyzing sources from the period across six languages, China’s modern zhuquan discourse is revealed to have diverse and highly globalized origins.

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Chu on The Fascist Origin of Modern Chinese Criminal Law? Revisiting Attilio Lavagna's Contribution to the Chinese Penal Code of 1935

Ming-hsi Chu, Northwestern University Department of History, has published The Fascist Origin of Modern Chinese Criminal Law? Revisiting Attilio Lavagna’s Contribution to the Chinese Penal Code of 1935. Here is the abstract.

The Chinese Nationalist Government established the Drafting Committee of Penal Code in 1931 and invited Attilio Lavagna, a judge at the Turin Court of Appeal in Fascist Italy, as legal advisor. The penal code was passed by the Chinese legislature in 1934, took effect in 1935, and is currently in force in Taiwan. This paper delves into Chinese and Italian archives to investigate possible Fascist legacies of Chinese criminal law. Lavagna and other Italian scholars have claimed that the 1930 Italian Penal Code and Fascist legal principles influenced Chinese legislators. During his two years in China, Lavagna published in law journals, commented on penal code drafts, and lectured to legislators, judges, and scholars on Fascism. He highlighted three principles of Fascist law: power, order, and fairness, and reported to the Italian Ministry of Foreign Affairs that the Chinese audience was highly interested in exploring Fascism. Enrico Altavilla argued in 1938 that China had modeled after the Italian penal code in terms of territoriality, prohibition against analogy, security measures, subjective principles, and positive criminology theories. Historians of Sino-Italian relations have underscored Lavagna’s contribution to Chinese law. This paper, however, finds that Italian Fascism’s influence was insignificant. Lavagna’s suggestions only focused on technical issues such as how many punishment choices judges should have. Altavilla’s arguments are imprecise because most articles he discussed already appeared in earlier drafts before Lavagna’s arrival. Rather, this paper emphasizes that subjective principles and positive theories were part of the global trend of criminal legislation in the 1930s.

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Ip on The Idea of Law in Classical Chinese Legalist Jurisprudence

ICYMI: Eric C. Ip, The University of Hong Kong, has published The Idea of Law in Classical Chinese Legalist Jurisprudence at 9 Global Jurist 2 (2009). Here is the abstract.

Being one of the most eminent schools of jurisprudence in Eastern Philosophy, Classical Chinese Legalism has a lot to offer to the understanding of the underlying forces which shaped East Asian legal systems even to the present day. I will comprehensively reconstruct the Legalist idea of law in three dimensions, (1) law and society, (2) law and politics, and (3) law and morality. I will refute the overtly negative and simplistic conventional readings that suggest that Legalism is merely a Legal Positivist blueprint of authoritarian statecraft. The long–neglected connections between Legalism and the cosmic order have grounded law on a particular political morality. Despite being plagued by some difficulties, the Legalists' contributions to social theory, anthropology, and procedural values are significant, even to researchers in a global era.

The full text is not available from SSRN.

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.

Download the article from SSRN at the link.