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The World's Legal Systems Lecture 12
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Extensive notes of lecture 12 of The World's Legal Systems
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The World’s Legal Systems – Lecture 12Chinese law
Confucianisation of law
We saw that throughout Chinese history there has been this kind of battle between the legalists and
the confucianists in the context of this entire debate between li and fa. Li is something like idealised
conduct and fa is something like some sort of punishment. We also saw that there is a particular stage
in Chinese history where legalism became far more important (the idea that the emperor or the state
made laws and that people had to follow them). There was no kind of emphasis on social relations.
What happened is that there is a certain kind of compromise that has arrived in Chinese society. Li was
sort of incorporated into the bureaucratic structures and legalism did not entirely disappear. There is
a sort of hybrid which you could find in some of the codes. What you had was a symbiosis of concepts
and they became positive law, because a lot of these social values were actually (…) in the codes and
in the statutes. Fa sort of became national law, because it was acted more as deterrent punishment. If
people did not perform their duties or if they did not perform the various kinds of obligations that
were due to them to have social harmony, then fa came into being. So fa is more like a last resort. This
leads to the phenomenon of the avoidance of law and the fact that Chinese avoid any kind of resort to
law. They often resort to extra-legal measures. So there is this entire idea that laws could be abused
by people in positions of part to criminalise actions. Therefore, there is much more of an emphasis on
for instance the confucian conceptions of balance and harmony which will be able to intervene and
might protect citizens from worse excesses of abuse. This is how one could understand this particular
issue. What are the kind of consequences as such? One is that there is much more of an emphasis on
criminal law and there is not so much emphasis on law relating to family relations or commercial law,
etc. There is a certain kind of emphasis only on the fact that an individual may not have fulfilled his
obligations and he is required to be penalised for it. So what happens, is that there are certain branches
of law which are not really legislated upon. What Menski says, is that you cannot understand this is a
legal vacuum, because you have the extra-legal sphere of Chinese society which deals with these kinds
of matters. Menski also talks about the distinction between primary and secondary rules and he says
that Chinese law has much more of a focus on secondary rules. The consequence of having this kind of
structure (fa and li) is that certain areas are more legislated upon than others. So we need to kind of
understand this question of what is the emphasis in Chinese law and what is the structure of Chinese
society in this context. There is a state which does not act in a very positivist manner. It doesn’t legislate
on everything, but it legislates more to ensure that individuals fulfil their obligations. This is something
you need to keep in mind in order to try to understand the confucianisation of law and how law itself
develops.
Are Chinese codes like Western statutes?
The issue here is whether the Chinese codes are like western statutes or whether we need to interpret
it in a different way. How do we understand enactments that were passed by the states and how do
we interpret it? How do we understand Chinese society before the 19 th century and is it comparable
with western statutes? We have to look at what is the law in China in terms of its practical basis and
what are the codes or what are the statutes or what are the written regulations that the state passes.
So these are known as lu and they are considered to be statutes. What they do, is that they clarify on
a number of matters and they are basically given out and they are passed by the imperial authority.
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