Writing Chinese Laws: The Form and Function of Legal Statutes Found in the Qin Shuihudi Corpus. By Ernest Caldwell. Routledge Studies in Asian Law. New York: Routledge, 2018. Pp. x + 202. $149.24 ; $24.98.

Over the past three decades a progressive transformation of the law and legal institutions in China took place as part and parcel of China’s broader modernization process driven by economic reform and development. The recognition and protection of private property as embodied in the amendment of the 1982 Constitution, the 2007 Property Law and other legislations, is one of the stories contributing to the transformation of modern Chinese law and legal institutions, which reflects a historical modernization process of socio-economic (...) change in contemporary China. However, this study by examining the development of a legal framework for the protection of private property, the problems related to urban housing demolition, and the rule of law in relation to the protection of private property, submits that the legal modernization in the protection of private property had no radical departure from, but confined within and compromised with, China’s current existing systems which, among others, still uphold socialist ideology and practice. (shrink)

Under Chinese law, the juridical status of the embryo and the foetus is unclear, mainly because the existing legislation can be subject to diverse interpretations due to its ambiguous language. Lack of clarity with the law has led to different understandings amongst Chinese legal scholars. However, although there has been no consensus, there has been a clear tendency to deprive embryos and foetuses of legal status or personhood, thereby excluding them from entitlement to fundamental rights, an understanding reinforced (...) by the Confucian view of the beginning of life. It is expected that in the near future the Chinese courts will face issues involving embryos and foetuses more often, such as disputes over in vitro embryos. The lack of legal precedent could result in contradictory resolutions, therefore, the law should clarify the legal status of embryos and foetuses and accord to prenatal life special respect and treatment. (shrink)

Journal Name: Semiotica Issue: Ahead of print.

What might it be to write a post-colonial social science? And how might the intellectual legacy of Chinese classical philosophy—for instance Sun Tzu and Lao Tzu—contribute to such a project? Reversing the more usual social science practice in which EuroAmerican concepts are applied in other global locations, this paper instead considers how a “Chinese” term, _shi_ might be used to explore the UK’s 2001 foot-and-mouth epidemic. Drawing on anthropological insights into mis/translation between different worlds and their alternative ways (...) of knowing and being, the paper explores that epidemic in three differently inspired _shi_-inflected “empirical” accounts. The first uses Sun Tzu’s strategic understanding of _shi_ to tell a conventionally representational story. The second resists the causes and background factors implied in standard social science by offering a “light” and _shi_-inflected form of knowing. And the third combines the referentiality of social science with a Lao Tzu-informed commitment to the paradoxes of normative epigram. This third narrative thus illustrates the possible features of a situated and _shi_-inflected social science that recognizes that it participates in the contexted and immanent flows and counterflows of things in the world. The paper concludes by noting that such a _shi_-inflected social science is experimental, and suggests that it is important to explore a range of ways of reversing the flow of concepts between EuroAmerica and other global locations. (shrink)

This article examines the social development of Hong Kong's cultural and national identity since its return from the UK to the People's Republic of China nearly six years ago, focusing on the extent to which Hong Kong students are now inculcated in traditional Chinese music and express their devotion to the PRC through singing the national anthem. Hong Kong music teachers experience conflicts concerning their roles as music teachers and as purveyors of values education. These observations raise fundamental questions (...) concerning the sociopolitical function of values education in the music classroom. (shrink)

The Legalists were a group of statesmen and writers in China (mainly fourth and third centuries BC) who advocated in their practice and writings the use of law as the principal instrument of government. They understood law in the Austinian sense of orders, stipulating punishments or rewards, issued by the ruler to his subjects. Emphasis was placed upon the fact that punishments should be severe and deterrent, that official should be accountable under the law for the correct performance of their (...) duties, that laws should be clear and certain, and that there should be a strict separation between law and morality, in the sense that law should take no account of moral desiderata but should itself furnish the sole source of what was right conduct. Although the great imperial codes from the T’ang to the Ch’ing (eighth to twentieth centuries) enshrined the basic values of Confucian orthodoxy, they were also strongly influenced, especially in their technical construction and the specification of officials’ duties, by Legalist doctrines. (shrink)

The aim of this research was to analyse Chinese legal terminology related to limits of freedom of contract in juxtaposition with other European and Asian legal systems. The study was limited to state, law and publicity. The purpose of the comparison was to add a broader perspective to the research on Chinese legal terminology. The research material included civil codes and contract laws of selected European and Asian countries. Among the European codes the great ones were obviously included (...) – French, Austrian and German, as well as those of less importance, but still relevant in Europe, such as Italian, Spanish codes or Swiss Law of Obligation, and also codes of Slavic and simultaneously post-socialist countries, like Poland, Czech Republic and Russia. In the case of Asia, the codes of China, Japan, South Korea and Vietnam were analysed. The question asked was whether the terminology used in Chinese law is unique or repeated and if so, how common it is in comparison with other legal systems. The research methods included the parametric approach to legal terminology comparison and techniques of legal construction (interpretation). (shrink)

The question of what makes a ‘law’ distinct from other kinds of rules and social norms – often called the project of ‘conceptual jurisprudence’ – gives rise to a classic debate in modern legal theory. The debate has historically centred on the competing Western views of (i) natural law theory and (ii) legal positivism. Meanwhile, the ancient Chinese school of thought known as ‘Legalism’ (法家) has remained an under-explored branch of Eastern philosophy, despite its many insights into the nature (...) of government and legal systems. This paper argues that Legalism, when interpreted as a system of conceptual jurisprudence, offers a genuine alternative to both of the dominant Western theories. It achieves this by invoking normative reasoning to conceptually distinguish ‘laws’ from other sorts of rules at the most fundamental level of analysis, but also by doing so without any necessary reference to notions of morality. This unique characteristic of Legalism is introduced in this paper as ‘form prudentialism’. (shrink)

In Mengzi 6A4, Gaozi states that “yì 義 (propriety, rightness) is external, not internal.” In 6A5, Meng Jizi says of yì that “...it is on the external, not from the internal.” Their defenses are met with Mengzi’s resistance. What does he perceive and resist in these statements? Focusing on several key passages, I compare six promising interpretations. 6A4 and a relevant part of 2A2 can be rendered comparably sensible under each of the six. However, what Gaozi says in 6A1 clearly (...) is evidence to Mengzi that, of the six views, Gaozi holds three although he does not convey them in his statement. As for Meng Jiz’s defense of his statement, Meng Jizi cites a special occasion where one is required to act one way even though one would feel a different way. Mengzi’s response has been traditionally interpreted as boiling down to a dissenting opinion about empirical psychology, that the agent on that special occasion would in fact feel the same way as they ought to act. But on a more charitable reading, the point Mengzi makes is conceptual: Though the satisfaction of yì may not require that the feeling and the act align perfectly in this case, cases where the alignment obtains are conceptually prior. This not only refutes Meng Jizi’s statement but also enables a more elegant explanation of why the Mengzi rightly has no record of Mengzi affirming that yì is internal. I conclude that 6A5 itself uniquely favors one interpretation, as far as Meng Jizi’s position is concerned: How one feels is irrelevant to whether one satisfies yì. (shrink)

The legal progression in China is portrayed negatively by western scholars who often argue that the state institutions in China are subordinate to the control of Chinese Communist Party’s leadership which makes these institutions politically insignificant. We consider that the legal progression in China has an instrumental role in achieving “Harmonious Socialist Society.” The purpose of this thesis is to provide an analytical literature review of scholastic work to explain the legality of rule of law in China and to (...) elaborate the outcomes of China’s recent legal developments. This paper has two main subjects. First, it examines the nature of law and rule of law in China through the prism of different legal theories. Secondly, by arguing from different political theories, it explains the necessity of customized legal system in China for establishing a Harmonious Socialist Society. By giving different examples from contemporary China, this thesis argues that the legality of the rule of law in China ought to be understood in the context of China’s economic and social progression rather than the western legal scholarship. China’s economic progress demands a customized legal system. In our thesis, we claim that the regular upgradation of laws and introduction of constitutional amendments in China, should be recognized as important achievement which is required for the institutional innovation. Legal progression in China during last decade perfectly fit into the framework of “Socialism with Chinese Characteristics” and is very crucial for building a harmonious socialist society. It is vivid from China’s economic growth and developed international relations. Finally, this paper suggests that the Chinese legal progression can be taken as successful example of legal experimentalism. (shrink)

Mit dem Inkrafttreten des Trustgesetzes im Jahr 2001 hat der Trust, eine der ureigensten Institutionen des Law, Eingang in das chinesische Zivilrecht gefunden. Der vorliegende Band stellt die Geschichte und die gesetzlichen Grundlagen des chinesischen Trust vor und untersucht dessen Regelungen unter Berücksichtigung des englischen Trustrechts und des Rechts der deutschen Verwaltungstreuhand. Die Arbeit geht dabei insbesondere der Frage nach, welche rechtsdogmatischen und kulturellen Gesichtspunkte den chinesischen Gesetzgeber bei der Rezeption des Trust geleitet haben.

. The article attempts to show the way in which the notions of “natural law” and “cosmic harmony” have been applied by Western scholars in the interpretation of traditional Chinese thinking about the role of law in society, the extent to which the Western interpretations can be supported by the Chinese sources, and , more specifically, the degree to which official Chinese thought subscribed to a correlation between the occurrence of natural disasters and acts of maladministration or (...) injustice on the part of the emperor and state. Generally it is argued that the extent to which Chinese statesmen and administrators actually believed that errors in the infliction of legal punishment or the sentencing of offenders would produce aberrant natural phenomena has been exaggerated by Western scholars. (shrink)

This paper explores the subject-matter of the relationship between law and humanity, filling a significant lacuna in philosophy of law in the West today. Doing so, the paper starts with recasting the traditional Chinese conflict—in particular, the conflict between legalism and Confucianism—over law in a new light of the contemporary call for stopping crimes against humanity. It then explores Habermas’ insight into and illusion of law. Finally, it examines the internal relationship between law and humanity, contending that law must (...) always treat humanity as a purpose, not as a tool to other ends, functioning to build a community of humanity; while a distinction exists between justice and benevolence, law must not be inhumane. (shrink)

The unprecedented public panic caused by COVID-19 will affect the recovery of tourism, especially the theme parks, which are generally crowded due to high visitor volume. The purpose of this study is to discuss the effect of the COVID-19 on the theme park industry. This study aims to predict recommendation intentions of theme park visitors by exploring the complicated mechanism derived from the fear of COVID-19. This study uses a quantitative research method, and SPSS 20.0 and AMOS 22.0 were used (...) for data analysis. An online survey was conducted with 420 Chinese respondents who visited Shanghai Disneyland after its reopening. The study explored the relationship between Fear of COVID-19, perceived risk, participation, service experience, and revisit intention. Results indicated the perceived risk of theme park visitors will not directly ruin their recommendation intention. Visitors’ fear of COVID-19 enhanced their perceived risk, reduced their desire for active participation and impaired their service experience, which consequently affected their recommendation intention. We provide theoretical and managerial implications. (shrink)

This paper discusses some paradoxical propositions in Chinese tradition, especially the School of Names. It not only explains what Chinese philosophers mean by these propositions and why there are such paradoxes in Chinese philosophy, but also makes an attempt to formulate these paradoxical propositions in the language of symbolic logic. Meanwhile, the paper makes a comparison between Chinese views about contradiction and Aristotle?s law ot non?contradiction and explores the relation between them. It comes to the conclusion (...) that once the difference between Chinese concept of contraries and Aristotle?s is made clear, inconsistency between Chinese paradoxial propositions and Aristotle?s. law of non-contradiction disappears. (shrink)

Reprint of Volume XVII in Probsthain's Oriental Series. With a Chinese index and an index of names and references. The Book of Lord Shang was probably compiled sometime between 359 and 338 BCE. Along with the Han Fei-Tzu, it is one of the two principal sources of Legalism, a school of Chinese political thought. Legalism asserts that human behavior must be controlled through written law rather than through ritual, custom or ethics because people are innately selfish and ignorant. (...) The law is not effective when it is based on goodness or virtue; it is effective when it compels obedience. This is essential to preserve the stability of the State. Roscoe Pound recommended this book for the study of old Chinese law in Outlines of Lectures on Jurisprudence (5th ed.) 235. (shrink)

Laws of nature are often considered to have played a crucial role in the development of modern science and continue to attract discussions in contemporary philosophy. Is there a similar idea developed in Chinese traditions? Despite its evident significance, there has not been much discussion on this question since Needham (1951) and Bodde (1979). Needham’s answer is no, and one of his main reasons is that China lacks the idea of a divine celestial lawgiver imposing order on natural phenomena; (...) Bodde largely agrees with him. In this paper, I explain why Needham’s arguments are problematic, and by examining Chinese classical texts, I argue that there is an idea of laws of nature, embodied by two notions, dao 道 and li 理. (shrink)

Argues that throughout the classical period in China, the word `fa' consistently means measurable, publicly accessible standards for the application of terms used in behavioral guidance. Review of the Daoist analysis of the meaning of fa; Original philosophical role of fa; Detail of Chinese philosopher Han Feizi's theories on the legal use of the term `fa.'.

Currently, abortion can be lawfully performed in China at any gestational stage for a wide range of social and medical reasons. I critically explore the Chinese regulatory model of abortion in order to examine its practical effects on women. Although I focus on the post-Maoist abortion law, I also analyse the imperial Confucianism-dominated regulation and the Maoist ban on abortion in order to scrutinise the emergence of the notion of ‘glorious motherhood’. By examining how ‘glorious motherhood’ is constructed and (...) reinforced in the Chinese family planning context, I argue that the post-Maoist government intentionally made abortion ‘law in the books’ unrestrictive in order to impose its control over female fertility. As a result of this, women are persuaded and even forced to lead a ‘glorious’ maternal life, which means sacrificing themselves for the purpose of achieving the state’s Malthusian and eugenic demographic goals. Furthermore, I argue that, in addition to exacerbating gender oppression, abortion law’s embrace of the idea of ‘glorious motherhood’ also produces ‘group oppression’ of unmarried women and working-class women. (shrink)

There is yet to be any animal welfare or protection law for domestic animals in China, one of the few countries in the world today that do not have such laws. However, in Chinese imperial law, there were legal provisions adopted more than a 1,000 years ago for the care and treatment of domestic working animals. Furthermore, in traditional Chinese philosophy, animals were regarded as constituent part of the organic whole of the cosmos by ancient Chinese philosophers (...) who saw no strict delineation between humans and non-human animals. Notwithstanding, the attitude and practice towards animals in ancient Chinese life was also ambivalent and was predicated upon the practical utility of animals for the service of humans and society. Such practice can be seen through the legal provisions in imperial China. This paper first discusses animal’s place in traditional Chinese philosophy and then in Chinese imperial law. It raises the issue of the gap discernable from the philosophical thought on animals and practice regarding animals in everyday life in China. The paper argues that given the gap in perception and attitude regarding animals, law can play an important role that moral teaching has not been able to achieve. (shrink)

1. A mainstream view on the origins of the imperial legal tradition in China is that imperial Chinese law underwent a process of Confucianization beginning in the Han dynasty. This point of view, f...

The book examines the extent to which Chinese cyber and network security laws and policies act as a constraint on the emergence of Chinese entrepreneurialism and innovation. Specifically, how the contradictions and tensions between data localisation laws affect innovation in artificial intelligence. The book surveys the globalised R&D networks, and how the increasing use of open-source platforms by leading Chinese AI firms during 2017–2020, exacerbated the apparent contradiction between Network Sovereignty and Chinese innovation. The drafting of (...) the Cyber Security Law did not anticipate the changing nature of globalised AI innovation. It is argued that the deliberate deployment of what the book refers to as 'fuzzy logic' in drafting the Cyber Security Law allowed regulators to subsequently interpret key terms regarding data in that Law in a fluid and flexible fashion to benefit Chinese innovation. (shrink)

Man has to face the unknown future anytime and anywhere. For this reason, he needs to believe in the truth beyond himself. Otherwise, society will decline, decay, and never come back. Similarly, human beings are always faced with social conflicts everywhere. For this reason, he needs a legal system. Otherwise, society will disintegrate and fall apart. However, from the constitutional text, there is no uniform title and standard definition of freedom of religious belief in all countries. Countries in the west (...) are called religious freedom, while China adopts the concept of freedom of religious belief. This article will further analyze the different influences of Chinese and western religions on the law. It is worth pointing out that the living environment of law in the west is not as good as Chinese people think, and the authority of law and people's belief in law are gradually drifting away. Based on the basic theory of freedom of religious belief, this paper analyzes the different influences of Chinese and western religions on the law, analyzes the present situation and demands for legal protection of freedom of religious belief in contemporary China, and tries to put forward feasible solutions. (shrink)

Résumé: Après la promulgation de la loi sur le mariage de la République populaire de Chine en 1950, les œuvres littéraires dérivées du besoin de publicité ont des implications politiques et une signification disciplinaire distinctes. Parce que le problème du divorce a la rationalité des “droits libres” et la sensibilité de l’agitation sociale, le récit du “divorce” à cette époque se situe dans une certaine mesure entre la politique et la réalité. D’une part, les œuvres littéraires doivent promouvoir positivement le (...) concept juridique de “liberté de divorce” et, d’autre part, elles doivent être soumises à un traitement narratif insensible. Les récits de divorce sont donc vagues et capricieux. Toutefois, la littérature a comblé dans une certaine mesure le fossé entre la loi et la réalité en réimaginant les problèmes réels causés par le divorce. (shrink)

This study investigates the interrelation of outer appearance and spatial configuration of modern Chinese court buildings with the party-state’s strategy of building regime legitimacy. The spatial element of this relation is explored in four different court buildings in Kunming, Chongqing, Shanghai and Xi’an. It is argued that court buildings contribute to the empowerment of individuals who appear as parties in trials. Courthouses also facilitate the courts’ function of exercising social control and the application of an instrumentalist approach to the (...) principle of public trials. Both the grounding of court buildings in the past and their compliance with international models of a modern independent judiciary are aspects of consolidating regime legitimacy. (shrink)

This Essay examines debates surrounding Qu Tongzu's ‘Confucianization of law’ theory. Qu's theory claims that Chinese law underwent a process of ‘Confucianization’ starting in the Han dynasty (202 BC–220 AD) and ending and culminating in the Tang dynasty (618–907), where the Confucian concept of li and other Confucian moral teachings were introduced and incorporated into the written law. I argue that Qu's theory should be properly characterised as a theory of descriptive jurisprudence and also a form of the mirror (...) thesis. In light of this characterisation, this Essay then lays out the possible counterarguments that could be raised against Qu's theory and then situates existing scholarship in the debate in these categories. I then test Qu's theory using a case study about kinship concealment in traditional Chinese law The Essay then concludes by urging that the debate should include more jurisprudential approaches. (shrink)

In general, Confucians have taken a dim view of the law. They have felt warranted in this view by a reading of Confucius’ Analects 2.3 in which the Master apparently disparages law-centered governance. Two great Confucian philosophers, however, Zhu Xi and Jeong Yakyong (widely known by his pen name, Dasan), view the role of law in society differently. Like all Confucians, they teach the cultivation of virtue, but alongside building social harmony through ritual and good character, these two philosophers perceive (...) that social order also requires the penal law. In this paper, I argue that Zhu Xi and Dasan, and Dasan in particular, follow the evidentiary lead of the classical Chinese philosopher Mozi to support their legal philosophy. Mozi offered three standards for establishing truth claims: empirical evidence from common life, authoritative evidence, and evidence of outcomes. Mozi’s empirical standard takes evidence of common life from what ordinary people have seen. Zhu Xi and Dasan take the evidence of common life, not from what the people have seen, but from common understandings contained in the written language. They use this approach to arrive at a different understanding of Analects 2.3 than other Confucians, one that relates the content of that passage to Analects 12.17. They interpret the passage on a philological basis that supports the presence of penal law from a perspective of ordinary life. For authoritative evidence, Zhu Xi and Dasan like Mozi appeal to the authority of the ancient sages, who register their support for penal law. Dasan also follows Mozi’s evidentiary lead in the evidence of outcomes by fully developing a consequential picture of how the absence of law detrimentally affects society. On this point, Dasan establishes a new and revolutionary legal outlook that differs from that of Zhu Xi. I show Dasan taking lessons from the classical Legalists to arrive at this position warranted by the evidence of outcomes. Having satisfied the three evidentiary standards, Dasan thus establishes the importance of the penal law from a Confucian perspective. (shrink)

ABSTRACTThe Book of Lord Shang attributed to Shang Yang is one of the most controversial products of ideological debates in pre-imperial China. Forty years ago, Li Yu-ning summarized previous rounds of debates that peaked with the Shang Yang fervor of the early 1970s. The present article takes over where she ended, further exploring trends in studies of the Book of Lord Shang since the Open-up-and-Reform Era. The paper shows that despite a clear tendency of depoliticization of these studies, scholars are (...) still deeply influenced by the tradition of using the figure of Shang Yang as a foil in contemporary political debates. In their evaluation of Shang Yang’s legacy, many contemporary Chinese scholars continue to use traditional views, but also modern ideas such as the “rule of law,” “progress,” “evolution,” “dialectic,” or the Marxist theory of distinct social stages. They all contribute to the ongoing relevance of Lord Shang to current China. (shrink)

Name der Zeitschrift: Semiotica Jahrgang: 2017 Heft: 216 Seiten: 151-168.

The art of law -- Proportionality between means and ends: a study in the art of law -- The function of legal methods in the balancing of interests: a study in the judicial process -- The legal systems of old and new China: a comparison -- Two forms of tortious liability in the modern Chinese law -- The problem of extraterritoriality in China -- A note on Rizæff Frères v. the Soviet Mercantile Fleet -- A note on the evidence (...) in the "Garcia case" --. (shrink)