Thank you so much, Prof Chen, for this prelude of what will be a series - a succinct introduction to the development of the rule of law in contemporary China and the succinct summation at the end: “Under the formal rules of law, the values of loyalty and filial piety were merged”
I note the ““invisible line” that undergirds Deng’s reform to promote a market economy in Modern China’s legal development is an aspect of jurisprudence most difficult for a legal mind steeped in Anglo-American jurisprudence to conceptually apprehend. From a comparative culture perspective, this is also the most maligned. Descriptors connoting pejorative meanings such as “authoritarian”, “patriarchal” (how are we "patriarchal" when filial piety 孝 applies to both mother and father?), “repressive” have been assigned, often to great consternation of many western educated Chinese who find the descriptors misplaced. The issue in our view concerns a choice - that between stability that conduces progress in the interest of what is common good versus perpetual chaos among atomized individuals that impedes it.
Hello, I am delighted to receive your thoughtful comments on my brief introduction to ancient Chinese law. You have perceptively noted my reference to the “invisible line” about the tradition of ancient Chinese law. However, I’d like to clarify that, in this article, my intention was not to express a view on whether ancient Chinese legal traditions either supported or hindered Deng Xiaoping’s market-oriented legal reforms. My purpose here is simply to point out that, although these ancient traditions may seem absent from today’s legal texts, they remain deeply rooted in Chinese society and continue to have a profound influence on the construction of modern Chinese rule of law. I will revisit this point in subsequent articles in this series.
Indeed, as you mentioned, Western literature tends to understand Chinese ancient legal traditions in a generally negative light, often associating them with concepts like authoritarianism. My fundamental viewpoint is that this stems from an oversimplified understanding of ancient Chinese legal traditions. As I mentioned in the article, although Chinese kinship traditions emphasize the subordination of lower-ranking members to higher-ranking ones, they also emphasize that those in higher positions bear a greater duty of care towards those below. Confucianism sought to provide an ideal social order by drawing on natural emotions, such as parental love for children, to minimize disputes. Thus, Confucius aimed for a state of “no litigation 无讼.” Here, we can see the divergence in understandings of natural law between East and West. Since the French Revolution, the West’s interpretation of natural law has largely equated it with individual rights and freedoms. In contrast, the East has interpreted natural law as a hierarchy in family relationships, implying corresponding duties of respect and care.
As you noted, both Eastern and Western political philosophies aim to achieve the common good, but our approaches are different. The West seeks to realize the common good by affirming individual freedom and, within Kantian philosophy, by setting boundaries on that freedom. Meanwhile, the East places individuals within natural familial bonds and seeks the common good through relationships derived from these ties. My fundamental view is that each approach has its strengths and weaknesses. For us in China, the reforms of the next thirty years should aim to protect and realize individual freedom while maintaining the foundation of Eastern traditions of care. Of course, this requires a concerted effort from scholars in both the East and West.
Thank you once again for your question, and I hope my response has not misunderstood your inquiry.
Thank you for your gracious reply, Prof. I feel greatly honored. I am not a legal scholar within any meaning of the term. I am a clinical and forensic psychologist who has spent more than half her life studying, working and living in America. It was with great trepidation I wrote my comment when I did. Reading it again, it sounded more plaintive than objective and professional. I should have spent more time to accurately express my sentiments.
I want to emphasize I fully understood all the points you made in the “prelude”. Allow me to clarify: I had not meant to imply the series will/should go the way of expressing a view on whether ancient Chinese legal traditions either supported or hindered Deng’s reform. Indeed, had that been your intention, the series would probably make a very boring political treatise, not a substantive discussion on the genesis of law in two markedly different cultures.
Most of all, I also fully understood how Chinese ancient traditions have remained deeply rooted in Chinese society and continue to have a profound influence on the construction of modern Chinese rule of law, even if they may not be expressly articulated in legal texts.
I also totally echo this: “…although Chinese kinship traditions emphasize the subordination of lower-ranking members to higher-ranking ones, they also emphasize that those in higher positions bear a greater duty of care towards those below.” Indeed, the higher the rank, the higher Duty of Care. I believe this is the principle that underlies the system of Meritocracy. The more capable, the more responsibilities; the more responsibilities, the higher the level of care.
Re “Confucianism sought to provide an ideal social order by drawing on natural emotions, such as parental love for children, to minimize disputes. Thus, Confucius aimed for a state of 'no litigation 无讼'", I have a somewhat different take. I think in the ideal Confucian world, all people by the time they are old enough to be parents have completed the growing task of “修身” and “齊家“, with 修身” preceding “齊家. From the perspective of developmental psychology, 修身 is a state of perfection no one attains unless one is the one and only Buddha. Hence I disagree with Kantian outlook which appears to to suggest freedom is a static state and setting boundaries on it will settle all human conflicts. Rather, my thinking gravitates to the Confucian teaching that “goodness” in a human is not to be taken for granted but must be nurtured and cultivated in order for it to manifest. This process is for life as explicated in one of the Four Books 大學 .
Yes, the Eastern and Western approaches on how to make the world a better place are different. I think the Eastern - in this discussion Chinese in particular - approach focuses on educating an individual while the West assume individual freedom, left alone as is, is the panacea for all ills.
As to reform in China for the next 30 years, I think timing and dosing are critical. China does have 1.42 billion people to administer to and the exercise of Duty of Care is no small matter filtering through the hierarchy of ranks. I would like to see China learn from the mistakes the West makes, not repeat them in an overzealous drive toward freedom of the sort seen in contemporary West which practices a type or phenotype of Individualism that has no “other” or “others” in it when it comes to balancing the needs of Self and needs of Society. In other words, in this phenotype, the "Individualism versus Collectivism" struggle is an *either you die or I die* proposition. In this balance, I think the ancient traditions of China are our remarkable strength. And that is a good thing.
Thanks a lot~! Thrilled to join this new forum to engage in discussions about public law, with a special focus on Chinese public law and governance~！
Fascinating - thanks for the unique content
Thanks much! We’re very excited to break the mold a bit and have this dialogue.
Breaking the mold is important when the old mold consistently proves to be a conduit to impasse.
Thank you so much, Prof Chen, for this prelude of what will be a series - a succinct introduction to the development of the rule of law in contemporary China and the succinct summation at the end: “Under the formal rules of law, the values of loyalty and filial piety were merged”
I note the ““invisible line” that undergirds Deng’s reform to promote a market economy in Modern China’s legal development is an aspect of jurisprudence most difficult for a legal mind steeped in Anglo-American jurisprudence to conceptually apprehend. From a comparative culture perspective, this is also the most maligned. Descriptors connoting pejorative meanings such as “authoritarian”, “patriarchal” (how are we "patriarchal" when filial piety 孝 applies to both mother and father?), “repressive” have been assigned, often to great consternation of many western educated Chinese who find the descriptors misplaced. The issue in our view concerns a choice - that between stability that conduces progress in the interest of what is common good versus perpetual chaos among atomized individuals that impedes it.
Hello, I am delighted to receive your thoughtful comments on my brief introduction to ancient Chinese law. You have perceptively noted my reference to the “invisible line” about the tradition of ancient Chinese law. However, I’d like to clarify that, in this article, my intention was not to express a view on whether ancient Chinese legal traditions either supported or hindered Deng Xiaoping’s market-oriented legal reforms. My purpose here is simply to point out that, although these ancient traditions may seem absent from today’s legal texts, they remain deeply rooted in Chinese society and continue to have a profound influence on the construction of modern Chinese rule of law. I will revisit this point in subsequent articles in this series.
Indeed, as you mentioned, Western literature tends to understand Chinese ancient legal traditions in a generally negative light, often associating them with concepts like authoritarianism. My fundamental viewpoint is that this stems from an oversimplified understanding of ancient Chinese legal traditions. As I mentioned in the article, although Chinese kinship traditions emphasize the subordination of lower-ranking members to higher-ranking ones, they also emphasize that those in higher positions bear a greater duty of care towards those below. Confucianism sought to provide an ideal social order by drawing on natural emotions, such as parental love for children, to minimize disputes. Thus, Confucius aimed for a state of “no litigation 无讼.” Here, we can see the divergence in understandings of natural law between East and West. Since the French Revolution, the West’s interpretation of natural law has largely equated it with individual rights and freedoms. In contrast, the East has interpreted natural law as a hierarchy in family relationships, implying corresponding duties of respect and care.
As you noted, both Eastern and Western political philosophies aim to achieve the common good, but our approaches are different. The West seeks to realize the common good by affirming individual freedom and, within Kantian philosophy, by setting boundaries on that freedom. Meanwhile, the East places individuals within natural familial bonds and seeks the common good through relationships derived from these ties. My fundamental view is that each approach has its strengths and weaknesses. For us in China, the reforms of the next thirty years should aim to protect and realize individual freedom while maintaining the foundation of Eastern traditions of care. Of course, this requires a concerted effort from scholars in both the East and West.
Thank you once again for your question, and I hope my response has not misunderstood your inquiry.
Thank you for your gracious reply, Prof. I feel greatly honored. I am not a legal scholar within any meaning of the term. I am a clinical and forensic psychologist who has spent more than half her life studying, working and living in America. It was with great trepidation I wrote my comment when I did. Reading it again, it sounded more plaintive than objective and professional. I should have spent more time to accurately express my sentiments.
I want to emphasize I fully understood all the points you made in the “prelude”. Allow me to clarify: I had not meant to imply the series will/should go the way of expressing a view on whether ancient Chinese legal traditions either supported or hindered Deng’s reform. Indeed, had that been your intention, the series would probably make a very boring political treatise, not a substantive discussion on the genesis of law in two markedly different cultures.
Most of all, I also fully understood how Chinese ancient traditions have remained deeply rooted in Chinese society and continue to have a profound influence on the construction of modern Chinese rule of law, even if they may not be expressly articulated in legal texts.
I also totally echo this: “…although Chinese kinship traditions emphasize the subordination of lower-ranking members to higher-ranking ones, they also emphasize that those in higher positions bear a greater duty of care towards those below.” Indeed, the higher the rank, the higher Duty of Care. I believe this is the principle that underlies the system of Meritocracy. The more capable, the more responsibilities; the more responsibilities, the higher the level of care.
Re “Confucianism sought to provide an ideal social order by drawing on natural emotions, such as parental love for children, to minimize disputes. Thus, Confucius aimed for a state of 'no litigation 无讼'", I have a somewhat different take. I think in the ideal Confucian world, all people by the time they are old enough to be parents have completed the growing task of “修身” and “齊家“, with 修身” preceding “齊家. From the perspective of developmental psychology, 修身 is a state of perfection no one attains unless one is the one and only Buddha. Hence I disagree with Kantian outlook which appears to to suggest freedom is a static state and setting boundaries on it will settle all human conflicts. Rather, my thinking gravitates to the Confucian teaching that “goodness” in a human is not to be taken for granted but must be nurtured and cultivated in order for it to manifest. This process is for life as explicated in one of the Four Books 大學 .
Yes, the Eastern and Western approaches on how to make the world a better place are different. I think the Eastern - in this discussion Chinese in particular - approach focuses on educating an individual while the West assume individual freedom, left alone as is, is the panacea for all ills.
As to reform in China for the next 30 years, I think timing and dosing are critical. China does have 1.42 billion people to administer to and the exercise of Duty of Care is no small matter filtering through the hierarchy of ranks. I would like to see China learn from the mistakes the West makes, not repeat them in an overzealous drive toward freedom of the sort seen in contemporary West which practices a type or phenotype of Individualism that has no “other” or “others” in it when it comes to balancing the needs of Self and needs of Society. In other words, in this phenotype, the "Individualism versus Collectivism" struggle is an *either you die or I die* proposition. In this balance, I think the ancient traditions of China are our remarkable strength. And that is a good thing.