Intellectual History / Ideologies

FACTUAL OUTLINE

INTELLECTUAL HISTORY / IDEOLOGIES

• CONFUCIANISM

o  Relationship to govt/history

§  Link between govt and Confucianism, until 100 years ago the civil service test was based on Confucian knowledge, scholars had been recruited for the govt for 2000 years.

§  Was targeted during the cultural revolution

§  Now is a tool of legitimation: Politicians mention “harmony” often (harmonious society = hexie shehui),

o  The philosophy:

§  Family = foundation of society. Filial Piety. 5 relationships, which have different rules that govern them (ruler/subject;husband/wife;father/son;older/younger brother;friends). Very hierarchical.

§  State = ruler is supposed to be honest and sincere, and set an example. Authority is based upon rituals called LI (rubber stamp congress). A way of providing social stability, thrived at a time when China was a group of nation states and there was a lot of social strife. Instead of there being strict rules, people should internalize what the best thing to do is, and elements of personal character are important.

§  Human capacity: everyone has the potential to improve. (Reeducation through labor).

o  Contrast with social contract view espoused by Bertrand Russell / John Locke: in Confucian society, individual is defined by their relationship to others. In social contract model, an impartial third party is needed to resolve a dispute.

o  Mencius: optimistic view, ruler should lead by example. “4 beginnings” which are elements of character that make us naturally good.

o  Xun Zi: pessimistic view, we are naturally bad but can be transformed by rites. Legalists were his students. More practical.

o  Analects:

§  2/4 : “I try to get the parties not to resort to litigation in the first place.”

§  2/3: “Guide them by edicts, keep them in line with punishments, and the common people will stay out of trouble but will have no sense of shame. Guide them by virtue, keep them in line with the rites, and they will, besides having a sense of shame, reform themselves.”

§  2/3: Most important is trust, then food, then arms.

• TAOISM

o  More humility, nature is more powerful than any human construct, and laws/structures/rites are all conceit and presumptuous. Simplify life. Wu Wei = the Way, or nonaction. Ties to cultural revolution and reeducation through labor.

o  Lao Tzu (or Tao te-Ching): “Keep the people innocent of knowledge and desires.” (3/3)

• LEGALISM drew on Taoism, because once all the rules are in place, you can practice wu wei because the state will essentially run on autopilot. Opposite of Confucianism where everything operates by relationships and personal interaction. “FA” = ways of organizing state power. Mechanical. Punishment was very harsh, because “If a light offense is censured heavily, one can imagine what will be done against a serious offense” (3/13, Li Si who was prime minister of the Qin legalist empire). Calls Confucianism “same practices by which the affectionate mother spoils her children” (3/13).
• 1/11 From Marx to Confucius by Daniel Bell: Marxism is not longer the driving force of the CCP: “hardly anybody really believes that Marxism should provide guidelines for thinking about China’s political future.” (1/13). Many politicians and intellectuals are turning to Confucianism in political rhetoric. Unity and honesty are Confucian values that are also promoted by the party, for example by the special corruption investigations that go on for party members. (Shuanggui)
• 1/20, John Thornton: “Guanxi” = web of personal relationships, still used to solve disputes, prevents really impartial decisions because judges often talk to the parties privately which can let corruption or guanxi “contaminate the process.”
• Contrast with Henry Maine article, 4/22: replacement of family with individual decision to bind in contract. Family à individual, rites à contract.

LEGAL HISTORY

• LEGALISTS: students of Mencius, Qin Dynasty 221-206. Gave rule of law a bad name, bc they wanted to unify Chinese laws and so burned all books that weren’t practical or legalist philosophy (just like in Cultural Revolution). Killed scholars too. Critical of Confucianism bc had a more pessimistic worldview, no belief in self improvement, instead a ranking system, hierarchical.
• QING CODE:

o  built on a code from the Tang dynasty 618-907. Major statutes = “lu,” 60/70% of them came from the Tang code, but that’s still a fair amount of change. Substatutes = “li,” lots of change within that level of ordinances.

o  Reflected Confucius ideas, 2 of the 10 great wrongs (article 2) = lack of filial piety and also gross unfilialness, concern family relationships. Families accompanied people to their punishment, exile or labor etc. (article 15). Even if it’s true, you aren’t supposed to accuse a family member of a crime. (article 337). It’s not only the action that will dictate the punishment, etc, but also the relationships between the parties.

o  Catchall provision: “Doing that which ought not to be done.” (article 386). V serious and often applied.

o  “not much concerned with the disputes of private individuals, nor with the notion of “rights.” (4/3, William C. Jones).

o  Listed out which punishments should be given for each offense. 5 different punishments.

o  In Re Hsu Chung-wei

§  Confessions = very important, reflect the Confucian notion of self improvement

§  Punishment is needed to reduce the shame of the perpetrator, not just as deterrence.

o  Magistrates were the ones who enforced the code, no legal training just historical, was representative of the emperor, no separation at ALL between law and govt. Exam included Confucian values. NOT familiar with local norms/customs, so as to prevent corruption and nepotism.

o  Censors: outside of the line of authority, investigated abuses, so there was a small check/balance.

• Mediation / clan / informal processes:

o  At first was done by clan. Also reflected importance of family/filial piety. Has a substantive core, not just neutral working out of problems. Like Appendix 31 of the Tsu Assembly, lists out specific punishments for specific wrongs. (5/9). Guild rules, very detailed.

o  Lawsuits would cause “losing face,” since it meant that you weren’t able to extract what you wanted from the other party, “public admission of a personal failing.” (5/5)

o  The Qing code prohibited private settlements of dispute, though in practice there was more of it than it seemed (5/3, Jerome Cohen article), because a magistrate could make a compromise decision, and also could refer parties to mediators.

o  Less effective once population started to be more mobile.

• CHINA AND THE WEST:

o  Tributary system: China had a view of itself as the center of the world, with the Celestial Dynasty in the middle, and all other states having to come and perform the “kowtow” bowing down and offering gifts, submission. Had to do this before you’d have the right to trade. Suspicion of “barbarians.”

o  Cantons system: the Hong were a guild who were allowed to trade with foreigners, no one else was. Foreigners weren’t allowed to stay past certain trade seasons or go to certain areas.

o  Case of the Lady Hughes: 1784, a British gunner killed a Chinese, and as punishment the Chinese strangled the gunner to death, and it was a factor leading up to the Opium Wars bc the British thought that Chinese law lacked DP and didn’t want their subjects to submit to it.

o  Lord McCartney: 1793, British lord who went to China and refused to kowtow, start of a shift.

o  Henry Wheaton’s Elements of Intl Law were translated by WAP Martin in 1864, became the Chinese bible on intl law, and they began to use it, slowly.

o  Opium wars, rule of law was used to pick on China. British had been paying cash for their tea, which made China able to extract bad trade bargains bc there was no good that UK had that China wanted. But then UK started to import opium to China, and trade exploded in the mid-1800s. This was a bone of contention bc it was ruining the fabric of Chinese society, but also, there was the huge issue of extraterritoriality, which the British demanded post-Lady Hughes bc they thought the Chinese system “vindictive and inhumane,” (6/16, de Bary and Lufrano) and which the Chinese refused.

§  1839: Lin Tse-Hsu sends a letter to Queen Victoria asking her to stop the opium trade. Makes conscience based arguments, but also intl law type arguments, but still shows arrogance: “the smoking of opium is very strictly forbidden by your country; that is because the harm caused by opium is clearly understood. Since it is not permitted to do harm to your own country, even less should you let the harm be passed on to other countries- much less to china!” (6/17).

§  Treaty of Nanking, 1842: unfair treaty with England (and there were other similar ones with other European countries because of most favored nation status, where once country cant get a better tariff deal with another) annexing Hong Kong, fixing tarrifs, opening ports and abandoning Hong system, pay for the opium they’d burned at the start of the war. Imperialism. Also put a negative gloss on the law, since it was used to degrade China

§  Extraterritoriality: The American treaty was the first to really do it. Then it was a MFN spiral and eventually 20 nations had it.

§  Informs PRC’s reluctance to give foreign institutions power, tho that is now changing.

• Late 1800s / early 1900s: Some attempt to embrace western ideas, lots of reforms but none very successful. In 1898 there 3 thinkers:

o  Prince Kung: member of Manchu ruling elite, pushed for western techniques from the inside, and Wang T’ao: journalist, argued for emulation of west. Even if it was only as a defensive technique, they know our language and laws and so we should know theirs. Translated a lot of intl law books, but it was viewed as a static thing, not debated like in Western countries, so wasn’t a perfect fit.

o  K’ang Yu-wei: called for radical reinterpretation of Confucianism, wanted to get rid of structures/rites/govt, more evocative of Taoism, “one world” view, the roots of crimes will be addressed instead of punishing them after the fact, all types of societal structure = sowing seeds of disputes. If there is structure, that will lead to litigation. But “one world” isn’t a clear guideline on what should replace these structures, segueways into sexual norms aren’t very helpful in forming governments. Portrayed Confucius as a reformer, and led Reform Movement of 1898, which failed to make any real changes and was put down. (7/8)

o  Boxer Uprising: 1900, was protest movement directed at foreign influence, supported by the empress dowager Tz’u H’si, attacked foreign offices in Peking, thought they were invincible bc used martial arts, and were brutally killed by foreign troops, and US/UK asked for huge indemnity payment for cost of war (mostly damaged churches), and after this govt was weakened and so…

o  Shen Chia-ben: was commissioned to do a comprehensive history of Chinese law. Advocates changing the punishments to be more detention based instead of physical punishment or banishment, and abolished analogy where people were punished for a crime by it being analogized to another without any notice in a code. DP. AND, Wu Ting-Fang is commissioned with traveling outside of China to see what the law is like in other places, rejects laws that don’t incorporate the importance of the family.

• Sun Yat Sen: Founder of the Kuomintang (Chinese Nationalist Party), after the fall of the Manchu, said that China resembled a “heap of sand” in that there was no unity. 2 aims were to nationalize and unify the country, and also to rid it of foreign imperialism, “hypocolony” as being worse than an official colony bc there are many nations who exert control over the Chinese (7/21). Didn’t reject foreign investments though, just foreign economic imperialism through unequal treaties. But was not a marxist, had a “5 power constitution” that had 5 branches of govt, sep of powers. Dies in 1925.
• 1925: Chiang Kai Shek leads Nationalist Party, tried to implement the 5 power constitutional form of govt. 4 years later, Japan invades Manchuria so went almost directly from civil war to WWII.
• In 1920s through 50s, more serious look given to Western law, John Wu was a Chinese scholar who became a UK lawyer and exchanged letters with OW Holmes, and former dean of HLS Roscoe Pound was invited by the Kuomintang to survey Chinese law and give suggestions. But neither really had any large scale effect, too much turbulence going on as there was chaos throughout the 30s and 40s, and instead of liberal ideas taking hold, Communism won out.
• October 1949: PRC founded.

o  Marx: History = in stages, feudalism à capitalism à industrial capitalism à socialism/communism. The last stage is the only one without “contradictions” and so will last. Law is just a tool of the elite class, advantages those who own the capital, even if workers win some cases that’s dangerous bc they get lulled into submission. The party need only be very powerful until communism is installed, then it will fade away. (Wu wei)