NOTE: This Is Not Really an Outline. It S a Summary of All of the Readings in WHY LAW?

NOTE: This is not really an outline. It’s a summary of all of the readings in “WHY LAW? CHINA…” in the spring of 2008. You are welcome.

Unit I: Introduction

Class 1: Introduction

Executive Summary: These readings set up the big questions: What are the major challenges facing China? To what extent can China be compared to other countries? How does China’s history influence modern developments? Is China moving in the “right” direction?

Excerpts from Hu Angang, “Equity and Efficiency”

One of China’s leading economists discusses China’s challenges and proposes some solutions.

Modern Chinese transformation is characterized by:
Societal change: Population growth and massive migration from rural to urban areas.
Economic change: huge economic growth and movement from planned economy to market economy
Political change: movement from centralized government to “socialist democracy”
Rural Urban inequalities/divisions/contrasts:
Political contrasts: There are different institutional structures in rural and urban china. Although a minority of the population lives in the cities, the cities get the lion’s share of governments budget and are over-represented in representative government.
Economic contrasts: The large cities in China are comparable to “first world” cities, medium sized cities are “second world,” while rural China is still “third world”
Sociological differences: Small Urban Chinese populations are more educated than vast rural/agrarian populations.
Hu’s Political Solutions:
China should model itself on a W. European social welfare state, ensuring the availability of public goods and providing social services and social security.
The government should be federal (split power between national and local governments to allow for regaional/ethnic differences)
Hu also likes separation of powers/checks and balances
Other reforms: transparency, independent journalism, smaller gov’t funded through taxation, limit on the power of the army on the gov’t (while keeping it strong)
Hu’s Economic Solutions:
Focus on human development
China should trade and take advantage of comparative advantage
Change social norms to avoid materialism and “get-rich-quick” mentality.
Hu’s Social Solutions:
Government (rather than public or private enterprises) should provide social security, healthcare, unemployment insurance, social safety net etc...

Wang Shaoguang, “The Problem of State Weakness”

This article argues that the Chinese state is weak and that the state needs to be strengthened before democratization.

How is the Chinese state “weak”? It can’t meet 6 basic functions of gov’t:
(1) No monopoly on the legitimate use of force—lawlessness exists in many parts of China and police officers are often outgunned by gangs.
(2) Bad finances: Tax burdens are high, but revenues are low.
(3) Weak national unity: there is a “spiritual void” in China
(4) Bad/Ineffective Regulation: evidenced by rampant counterfeiting.
(5) Government lacks internal coherence: Public corruption—failure make businesses obey the law because officials fear unemployment.
(6) Failure to redistribute: China’s rising tide hasn’t lifted all boats.
Wang argues that these problem must be solved before Democracy could work in China. The state will have to have effective institutions to deal with legitimate popular demands.

John Thornton, “Long Time Coming: The Prospects for Democracy in China”

Thornton thinks that China is moving toward a form of Democracy, but that Chinese democracy may be very different from Western democracy. There are three areas where important reforms are being made (we’ve talked about these reforms in other classes, so I’ll keep this brief):

(1) local elections: China is making some baby-steps with township elections, intra-party competition/elections
(2) judicial independence/rule of law: judges are a lot better trained and more professional than they were in the past
(3) Party oversight:
some paths are being created for citizens to challenge government/party decisions
restrictions on investigative journalism are being relaxed

Daniel A. Bell, From Marx to Confucious: Changing Discourses on China’s Political Future

Marxism is still the official ideology of the CCP, but it is hardly ever talked about anymore.
To the extent that Marxism plays a role in the modern CCP, it exists to explain that communism is a distant goal that will follow a period of capitalist development (i.e. what China is undertaking today).
In broader Chinese society, Marxism has been “so discredited by its misuses that it has lost almost all legitimacy” (p. 3).
What is filling the “moral vacuum”? Confucianism.
Confucianism is deeply ingrained in Chinese society: Bell argues that some aspects of the CCP program (placing the state over family ties, for example) failed because they didn’t “resonate” with Confucian ideals.
The party’s “harmonious society” program has affinities with Confucian thought.
Is Confucianism a challenge to “Western Style Democracy?” Maybe yes, maybe no.
Some thinkers have equated Confucian ideals with democratic institutions such as “parliamentary systems, elections and equal rights” (p. 4), but others use Confucianism to advance less democratic governmental arrangements.

Roberto Unger and Zhiyuan Cui, “China in the Russian Mirror”

This short piece argues that China should learn from the Russian experience, which proved that simply development cannot be achieved by simply “imitating...Western economic and political institutions” (p. 1). Rather, to succeed, China will have to be innovative and build “on its own peculiarities and inventions” by “deepening democracy” (i.e. involving the populace in politically meaningful ways) and allowing for democratic “experimentalism”.

James Mann, “Who’s Integrating Whom?”

This is a pretty cynical view compared with the rest of the articles for this week. Mann argues that American military and business interests prevent us for seeing the Chinese government for what it is—a brutal Leninist regime bent on stifling “political pluralism” (p. 106). The author argues that the American push for increased “rule of law” may help American businesses (by giving them secure property rights in China) but it will not necessarily result in increased rights for Chinese citizens. In fact, increasing the efficiency of the Chinese legal system may just make oppression of Chinese citizens more efficient.

Unit II: The Chinese Legal Tradition

Class 2: The Intellectual Foundations (1)—Confucianism

This assignment outlines the elements of Confucius’ thoughts, and those of his two most noted disciples: Mencius and Xunzi. The article on the history of the western philosophy juxtaposes Locke’s idea of a social contract as the justification of government, with Confucius’ belief that the family is a source of power for government and that filial behavior reinforces government.

Intro note on Confucius, from Sources of Chinese Tradition, Bary/Bloom (1999)
Confucius’ followers were identified as ru. He emerged as a scholar responding to a crisis of civilization from warfare due to contending states fighting for territory and power. The law wasn’t his primary concern (Confucius tried to dissuade people from resorting to litigation)
He advocated for the perspective of the ru and tried to promote the styles and manners of the noble person (gentleman) (junzi) and the efficacy of moral force or virtue (de), rather than violence and coercion, as a strategy for rulers. (rulers should not be violent/cruel in their positions)
Here Junzi refers to a noble man whose nobility derives from personal commitment & a developed moral power (de). From Confucius’ perspective, anyone could become a junzi, although you have to pass stringent moral requirements that applied to attitude, motivation, and behavior.
3 most important kinds of conduct that Confucius associated w/ moral nobility (expected of the junzi): (1) filial devotion (xiao) (family devotion) - family as the heart of everything (parents have responsibility of being benevolent & take care of kids, kids = responsible for showing reverence & respect). (2) humaneness (ren) (3) ritual decorum (li)
The Analects is a selection of conversations compiled by followers, some weren’t contributed to the written record until over a century after Confucius lived. Confucius did NOT write the Analects. Confucius was NOT influential to others (besides his student) during his lifetime, but became influential through his disciples after he died.
After the Cultural Revolution, the PRC began pushing the values of Confucianism as a way of rebuilding & moving forward. Confucianism has become commercial in the PRC
Confucius sees government as modeled on the family and sees the practice of filial devotion to have a bearing on the stability of society as a whole. He believes that filial devotion practiced in one’s family has wide scale ramifications.
Leadership: “From a Confucian perspective, perhaps the most important capacity that a ruler can have is the capacity for recognizing that he must treat the people as he himself would want to be treated in their position”- p.43
Selections from the Confucian Analects. Book 2, 12, 13
BOOK 2: Confucius says: if a leader guides people by virtue and keeps them in line with the rites (rituals/traditions), they will have a sense of shame (for what they’ve done wrong) and they will reform themselves. This indicates that there IS a place for law (society has both morality & law), but the most important thing= for the citizens to be persuaded to be a certain way.
The importance of being filial (complying with traditional notions of respect w/in family to elders, etc.): (1) show reverence, take care of your parents, comply in the rites in serving parents (2) belief that being filial is a way of exerting an influence upon government. Being filial reinforces gov’t.
BOOK 12: Importance of a leader having the common people’s trust.
A leader doesn’t need to be violent, just be good to her people and be a virtuous gentlewoman
BOOK 13: Government:
Leaders should set an example for people and it will encourage them to work hard
Show leniency to minor offenders and promote men of talent
Rectification of names: (1) Represents a need to understand the language being used in order to run a country (a unity comes w/ a shared understanding of terms so rectification can mean getting the names/titles right). (2) Also, this could mean that if rulers want to act like kings- have to sort out those who are true rulers from those who aren’t- telling rulers to ‘shape up’ in order to receive the legitimacy they seek. Moral call to live up to titles.
Excerpt from Betrand Russell, A History of Western Philosophy (1945)
Locke represented a theory about the origin of government that maintained that civil govt = the result of a contract & that it is NOT established by divine (God-ordained) authority.
Served as an explanation for why people should obey governments. According to Locke, the govt is a party to the contract & can be justly resisted if it fails to fulfill its part of the bargain.
Locke held the view that those who do not have property are not considered citizens. He assumed the exclusion of women & the poor from the rights of citizenship, as well.
Locke believes that the power of the government contract never extends beyond the common good. But Locke didn’t ask who would be the judge of the common good, it is presumed that he would say that they majority of citizens is to be the judge. B/c Locke sees compliance w/ the govt as a social contract b/w citizens & the govt, each citizen must consent to the contract. “The civil compact which institutes govt binds only those who made it”-p. 631.
Locke says the supreme power can’t take a man’s property w/o his own consent. The authors note that the social contract that Locke speaks of is mythical but there is some measure of truth in it as a justification of govt.
Intro note on Mencius from Bary/Bloom (1999)
Both Mencius & Xunzi reflect on matters of governance & personal cultivation & the direct relationship b/w the 2.
Mencius – Confucius’ first great successor: The Mencius = a record of conversations b/w Mencius & rulers of the contending feudal states, disciples, & philosophical adversaries. Many of the exchanges are arguments. Mencius says that humans have certain basic needs (food shelter clothing education) that must be met in order for their existence to be possible. He directly criticized rulers for instigating warfare and for not being more humane. Mencius believes that human moral potential is great, and that human tendency is to do good but force of circumstances may bring men to do evil. He discusses the 4 beginnings that every man is capable of exercising (because they’re innate): humaneness, righteousness, propriety (decorum) & wisdom. And a *natural human tendency toward sympathy to others* which is 1 of his most important contributions to later Chinese thought. Mencius on government: the focus should be on humanity and virtuous conduct, not profit and power; the ruler counts the least, the people rank the highest. Mencius on the Well Field System: a system of equal landholding where eight households surround a central public field which gets priority in cultivation over individuals’ own fields. Mencius believed, like Confucius, that the foundation of the state lies in the family.
Intro note on Xunzi (Hsun-tzu), from Bary/Bloom (1999)
Xunzi’s view of the world was darker than Mencius’- he challenged Mencius’ positive conception of human nature as fundamentally good. He reaffirmed Confucian values of devotion to learning, culture, & the possibility of human perfectibility. Xunzi focused on Confucius’ commitment to order, hierarchy, personal cultivation, & community organization. Xunzi’s work is a collection of essays, not conversations.
He believes that the nature of man is evil & that goodness is acquired. Men wish to be good b/c their nature is evil. A man must submit himself to teachers & laws in order to be just. Xunzi said that rulers should not be impatient & too stern, but not too sympathetic. He believes that gentlemen are the only people capable of such government (no favoritism or partisanship), and that ‘one who truly understands how to use force does not rely upon force’- p. 40.

Class 3: The Intellectual Foundations (2)—Daoism (Taoism) and Legalism

Executive Summary

Building upon Class two, this class attempted to highlight the role of religion in structuring governments and ideas of governance in Chinese history. These patterns of thinking may be relevant to understanding China’s current government structure and approach to legalism. Importantly, think about arguments that the current lack of a dominant religion in China is driving greed, immorality and lack of consideration towards others, leading to the corruptness of judges, local government officials etc that we have read about in class. Is there a role for religion in reforming China’s legal system?

Some questions to think about:

What role, if any, might the Daoist skepticism about law and morality play in the current Chinese government’s approach to law, legality, and judicial independence?
How might one draw on the Daoist focus on spontaneity and nature to advocate for a “true” market economy with less government interference?
How might the Legalists’ focus on uniformly administered laws be used to advocate for more comprehensive laws and stricter enforcement of the same in contemporary China?
Does the legalist vision of government conform to our views on “rule of law”? Or is this more a vision that embodies “rule by law”? Is there a meaningful difference between the two? Does each draw on and sustain the other – i.e. does a functioning society need both rule by law and rule of law? We talked about some of the elements of “rule of law” in class: legitimacy of laws, equal application of laws to all, and accessibility of the law to all.

Because this week’s readings are hard to separate, I’ve consolidated the Daoist and legalist readings into two packages. See below:

Introductory note on Laozi and Zhuangzi from Sources of Chinese Tradition, eds. William Theodore de Bary and Irene Bloom (1999). AND Selections from Lao-tzu (Laozi)

Daoism focuses on simplicity, emptiness and spontaneity. See §16 of the Selections from Lao-tzu  “Attain utmost vacuity.” Daoism criticizes the Confucian focus on hierarchy and multiple distinctions between inter-personal relationships i.e. relationship between father and son, ruler and subject, etc. It views the Confucian idea of striving towards perfection as a reflection of human conceit. Instead, it emphasizes the link between people and nature and assumes that this link reduces the need for government, law, and order.

Introductory note on the Legalists from de Bary and Bloom (1999). Selections from HanFeizi (Han Fei-tzu). AND Introductory note on Li Si from de Bary and Bloom (1999). Selections from Li Si. (Legalists)

The Legalists view Confucian thinking as idealistic and naïve – unresponsive to harsh political realities. They (the legalists) understood humans as inherently evil and unable to cultivate goodness. These values anchor their belief that government should be based on strict laws, with little individual/human discretion.

Class 4: Law and Order in Imperial China (1)

Executive Summary:

These readings introduce us to the Qing code, the legal system of the last great Chinese dynasty. In considering the code we are asked to consider it in contrast to western legal systems. The first reading introduces the Qing code and provides a context in which to analyze it. The selected materials from the Qing code provide examples of areas in which it differs drastically in its focus from western law. The DC code provides an interesting parallel to the considerations of the elderly laid out in the Qing code, and the case of Hsu Chung-Wei allows us to observe its application. Lastly the excerpt from Maine describes the progression of ancient legal systems from a focus on the family to a focus on the individual.

Excerpt from William C. Jones, The Great Qing Code

The Quing Code represents an important foundation of the Chinese legal system. It was the law of the last Chinese dynasty, however, its roots can be traced back though history and numerous preceding dynasties. Study of the code, and of Chinese law in general, is important for comparative law scholars because of the fact that Chinese law developed completely independently from western law. It therefore presents an opportunity to consider the ways in which a completely separate culture sought to solve the same legal problems that we are presented with. One of the fundamental differences between the approaches of Chinese and western legal systems is that Chinese law focused primarily on the interests of the emperor and the government as opposed to the rights of individuals. To this end the structure is organized around the regulation of the various branches of government, and essentially prescribes punishment for failures (at the various levels) to fulfill one’s duties to the empire. To the extent that individual rights are contemplated, they are given legal effect only to the degree to which they might affect the interests of the empire. In short individuals are indirectly benefitted by a primary focus on the interests of the state, while the reverse is true in western legal systems (pg. 9). The code functioned almost like the US constitution in that it represented the central source of law and force behind legal principles, while most decisions were actually made based on precedent.