In a recent lecture to Chinese Christians, scholar Dr. Fenggang Yang (杨凤岗) gave an in-depth analysis of the historical evolution and contemporary significance of the modern legal system in Chinese society. He explored the tensions and integrations between traditional law and modern rule of law, highlighting the distinctive characteristics of China’s traditional legal system and emphasizing the role of foreign influences in introducing modern legal practices into Chinese society.
Yang began by explaining that to fully grasp the journey of modern legal systems in Chinese society, it is essential to revisit the characteristics and historical backdrop of traditional Chinese law.
Characteristics of Traditional Chinese Law
Traditional Chinese society placed great emphasis on the importance of law. Starting from the Qin Dynasty, Chinese Legalist (法家) philosophy dominated the legal framework, resulting in a highly structured and stringent legal system. Nevertheless, several key characteristics of the traditional legal system warrant special attention:
Family-State System and Imperial Rule:
Traditional Chinese society revolved around the family-state framework, with the emperor functioning as the ultimate authority. The state itself was regarded as the emperor's personal property. Despite the cyclical rise and fall of dynasties, the nature of the state remained constant, operating as an imperial regime. The emperor held supreme power, and the law was a direct expression of his will. The saying "What I decree is the law (朕既是法)" captures the essence of this autocratic legal philosophy.
The Concept of Royal Law:
Traditional Chinese law, often referred to as "royal law (王法)," reflected the absolute authority of the emperor. Legal codes such as the Tang Code (唐律), the Great Ming Code (大明律), and the Great Qing Legal Code (大清律) were designed to enforce the emperor's will. These laws prioritized maintaining national unity and social order, creating a system adaptable to the empire's vast and diverse territory.
Harsh Penalties and Severe Punishments:
Traditional Chinese law heavily emphasized strict discipline and severe punishments, applied to both ordinary citizens and officials. Government officials were not modern civil servants but acted as the emperor’s agents. For instance, county magistrates, selected through the imperial examination system (科举制度), were dispatched to enforce imperial law locally. The legal system imposed stringent restrictions on these officials to ensure their loyalty to imperial authority.
Lack of Professional Legal Personnel:
At the local level, county magistrates often acted as judges, handling disputes and delivering verdicts. At the central level, institutions like the Ministry of Punishment (literally translated from 刑部, now mostly known as the Ministry of Justice) oversaw legal matters. However, traditional Chinese society lacked a professional judiciary or the legal profession as we understand them today. Being a lawyer was not a job, petition writers were not officially recognized and were even viewed as subversive to the imperial legal system.
The Introduction of Modern Legal Systems
Yang noted that the emergence of modern legal systems in Chinese society was closely tied to the establishment of foreign concessions (租界) and extraterritorial rights (治外法权). These developments marked the beginning of the application of modern legal principles in Chinese territories.
The Special Status of Foreign Concessions:
Foreign concessions, such as the International Settlement in Shanghai during the 19th century, were autonomous zones governed by foreign powers. Within these areas, the imperial Great Qing Code laws was rendered ineffective, and foreng legal systems were imported. Foreign nationals also enjoyed "extraterritoriality, rights" meaning they were not subject to Qing laws while in China but instead were governed by the laws of their own countries.
Early Adoption of Modern Legal Practices:
The legal system in the concessions included the legal frameworks of countries such as the United Kingdom and the United States, which adhered to the basic principles of modern law, such as courtroom trials and procedural justice. Through these practices, the modern legal system began to take shape within Chinese territory.
The Historical Significance of Extraterritorial Rights:
Although extraterritoriality wounded the national pride of the Chinese at the time, its existence was necessary. Yang pointed out that Chinese expatriates conducting business in regions like Africa and Latin America often recognized the benefits of extraterritorial rights in areas where local legal systems lacked fairness. This experience offered valuable insights into the historical context of modern legal systems in the concessions.
Reflections on Law in Modern Chinese Society
Yang concluded by emphasizing that, although the initial adoption of modern legal systems in Chinese society was driven by external force, their principles and structures have demonstrated undeniable advantages in safeguarding rights and upholding justice. As the Chinese society continues to integrate into globalization, these legal frameworks are increasingly vital for managing transnational commerce and resolving international disputes.
