A Guide to Introductory Research
By Marylin Johnson Raisch
Confucian Law and Legal Theory
Essential Facts
The teachings of K’ung-tzu (older form Kong fou-tseu) known in the west as Confucius bear on the informal legal tradition of the Chinese jurisdictions where the rite and custom of persuasive example or li has been an alternative even within that culture to legalistic codes or more positive law (fa). Penal and administrative law has been more prominent than any private law and so the influence as of other religious systems on family law or obligations is not seen in the positive law. Confucianism is often seen as a philosophy and not a religion, but it is included here as a basis for law as a means of social control and reinforcing roles, similar in some ways to ancient Roman law.
Research for western legal scholars is dependent upon scholarship in a difficult language transliterated differently over the years using Wade-Giles or pinyin systems. As a guide, these textual problems are described as quoted below from an article by Janet E. Ainsworth, Interpreting Sacred Texts: Preliminary Reflections On Constitutional Discourse in China, 43 Hastings L.J. 273 (1992):
“The Confucian Classics are a collection of writings said to date from the late Chou Dynasty (1122 – 221 B.C.). In accord with the Chinese cultural penchant for enumeration, they are referred to as either the Five Classics or the Six Classics. Some years later, certain scholars claimed to have discovered surviving copies of the Classics which had ostensibly escaped the Ch’in burning decree — texts written using the ancient style characters of the Chou Dynasty. For a brief time, the two rival sets of texts, the “New Texts” (chin wen) in contemporary Han Dynasty script and the “Old Texts” (ku wen) in ancient script, vied for dominance among Confucian scholars. By the closing years of the Han Dynasty, however, the Old Text versions of the Classics prevailed over the New Texts. Nevertheless, the episode of the book-burning shaped the Confucian attitude towards the Classics, fueling a perpetual insecurity that the canon which survived was in some way defective or incomplete. That fear was to provide the justification for revising and reconstructing the canon throughout Chinese history..
Classical scholars over the centuries felt free to propose additions or deletions to the Confucian canon. The Book of Rites, for example, was originally supposed to have contained 204 chapters. Later scholars whittled it down to eighty-five, then to forty-nine chapters. Confucius himself provided a precedent for such wholesale revision of the classical texts, in that he traditionally was credited with excising major portions of the Book of Poetry, and perhaps the Book of Documents as well. .
The contestability of the classical Confucian texts was to have dramatic political consequences in late imperial China. During the late Ming Dynasty (1368 – 1644), a .Using sophisticated philological techniques, these scholars exposed a number of these classical texts as forgeries. They therefore advocated going back to the so-called New Text versions of the Classics, which Han Dynasty scholars had reconstructed from memory.” pp. 286-290
Basic sources and their descriptions: internet, books, articles
Internet
- Internet Sacred Text Archive, Confucian “classics” in older translations, of the “Canon”, Analects, and many other documents
- FU JIZONG, ON THE RELATIONSHIP BETWEEN MORALS AND LAW: The Moral Character of Confucian Legal Thought (Council for Research in Values and Philosophy, online publications on Cultural Heritage and Contemporary Change) (site updated through 2005/6)
- Internet Chinese Legal Research Center, Wei Luo – Concentrates on modern and positive law for three jurisdictions of China, Hong Kong, and Taiwan but contains many links to courses in North America on Chinese law with some introductory material to syllabi indicating extent of history or integration of Confucianism by individual instructors.
Books
- Liu, Y., Origins of Chinese Law: Penal and Administrative Law in its Early Development. Hong Kong: Oxford: New York: Oxford University Press, 1998.
- MacCormack G. The Spirit of Traditional Chinese Law. Athens, Ga.: University of Georgia Press, 1996.
- McAleavy, H., “Chinese Law” in J. Derrett, An Introduction to Legal Systems. London: Sweet & Maxwell, 1968 at 65.
- Ren, X., Tradition of the Law and Law of the Tradition: Law, State, and Social Control in China. Westport CT: Greenwood Press, 1997.
Articles
- Ainsworth, Janet E. Interpreting Sacred Texts: Preliminary Reflections On Constitutional Discourse in China, 43 Hastings L.J. 273 (1992).
- Fang, Quiang and Roger Des Forges. Were Chinese Rulers above the Law – Toward a Theory of the Rule of Law in China from Early Times to 1949 CE, 44 Stan. J. Int’l L. 101 (2008).
- Waha, Carolyn R. The Teachings of Confucius: A Basis and Justification for Alternative Non-Military Civilian Service, 2 Rutgers J. Law & Relig. 3 (2000/2001)
- Wong, Bobby K.Y. Traditional Chinese Philosophy and Dispute Resolution, 2000, 30 Hong Kong L.J. 304
- Winfield, Betty H. Takeya Mizuno and Christopher E. Beaudoin. Confucianism, Collectivism and Constitutions: Press Systems in China and Japan, 5 Comm. L. & Pol’y 323 (2000).
- Hahm, Chaihark. Law, Culture, and the Politics of Confucianism, 16 Colum. J. Asian L. 253 (2003).
- Quinn, Michael Sean. The Analects for Lawyers: Variations upon Confucian Wisdom, 34 Tex. Tech L. Rev. 933 (2003).
- Head, John W. Codes, Cultures, Chaos, and Champions: Common Features of Legal Codification Experiences in China, Europe, and North America, 13 Duke J. Comp. & Int’l . 1(2003).
- Johnson, Wallace. Symposium on Ancient Law, Economics & Society, Part II: Ancient Rights and Wrongs: Status and Liability for Punishment in the T’ang Code, 71 Chi.-Kent. L. Rev. 217 (1995).