Wednesday, March 6, 2024

Albert Chen on China's Comparative Law (New Book Chapter)

Albert Chen
in Elgar Encyclopedia of Comparative Law 
Edward Elgar Publishing, pp.229–235
Published online: December 2023

I. Introductions

Chinese civilization reached a high level of development at the same time as that of ancient Greece and Rome. A legal tradition evolved in China that shaped the traditional legal systems in → Korea, → Japan and → Vietnam. A sophisticated philosophy of law known as Legalism emerged in the fourth century BCE which viewed law and criminal punishment as the primary means of social control and of State-building. An opposing school of thought at the time was Confucianism, which advocated instead governance by rulers practising moral virtues and by moral education of subjects. During the Warring States period (475-221 BCE), the Qin State adopted and practised Legalism, and eventually succeeded to unify China by conquering the other States. However, the Qin dynasty was short-lived; it was followed by the Han Dynasty (202 BCE-220 CE) which adopted Confucianism as the official ideology. The Chinese legal system in subsequent dynasties embodied a synthesis of Legalism and Confucianism. As stated in the comprehensive law code of the Tang Dynasty (618-907 CE), ‘virtue and morals are the foundation of government and education, while laws and punishments are the operative agencies of government and education. The former and the latter are necessary complements to each other’. At the time of the Song Dynasty (960-1276 CE), China operated one of the most advanced legal systems in the world. The last major code of the traditional Chinese legal system was that of the Qing Dynasty (1644- 1911 CE). Traditional Chinese codes contained elaborate provisions on → criminal law and the law of public administration. The principal source of civil and commercial law was customary law. Traditional China promoted mediation as a major means of dispute settlement; civil litigation (→ Civil Procedure) in the courts was considered a matter of last resort. There was no respectable profession of lawyers like that in ancient Rome. Lawmaking was the prerogative of the emperor; there were no Parliamentary institutions like those in mediaeval Europe. The challenge of the West since China’s defeat in the Opium War in 1842 prompted the Chinese elite to seek modernization for China. Efforts at legal modernization were made in the first decade of the twentieth century. Codes of law based on Western models were drafted, including codes of criminal law, civil law, commercial law, criminal procedure and civil procedure, and a new organic law of courts. Steps were taken towards constitutional reform for the purpose of establishing a constitutional monarchy like that in Meiji Japan. An ‘Imperial Constitutional Outline’ was promulgated in 1908, and thereafter provincial assemblies and a national assembly were elected. However, the Qing Empire was soon overthrown by the 1911 Revolution...

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