Recent scholarship stresses the key role of a nation’s 'legal origin' – eg common law versus civil law regimes – in accounting for growth performance, and current financial institutions (La Porta et al 1998). This work, however, has a big hole in it – non-Western legal traditions are nowhere mentioned. This is curious since Western intellectual giants such as Max Weber stressed the importance of such systems.
The glory of Western civilisation
Weber’s magnum opus on comparative legal traditions highlighted the uniquely Western feature of formal justice as the cornerstone of Western capitalism and the rise of the West. The key features, in his view, were a system where legal adjudication and the process for all individual legal disputes are bound by a set of general and well-specified rules and procedures. Formal justice ensured what Weber termed as predictability and calculability in legal outcomes that were absent from the so-called substantive justice in non-Western legal traditions where legal outcomes had often been under the sway of religious, political, or other extralegal factors (see Trubeck 1972).
Indeed, as echoed by the eminent sinologists Edwin Reischauer and John King Fairbank:
The concept of law is one of the glories of Western civilisation, but in Chinese, attitude toward all laws has been a despised term for more than two thousand years. This is because the legalist concept of law fell far short of the Roman. Whereas Western law has been conceived of as a human embodiment of some higher order of God or nature, the law of the legalists (in China) represented only the ruler’s fiat. China developed little or no civil law to protect the citizen; law remained largely administrative and penal, something the people attempted to avoid as much as possible (see Ma 2011 for the quote).
Critics of Weber’s thesis
The Weberian legal thesis had not been short of critics. More recently, a new wave of revisionist scholarship has claimed the imperial criminal justice system under the Qing (1644-1911) was more rule-bound and predictable as all legal rulings were required to cite the relevant imperial penal codes and were carefully reviewed through the administrative hierarchy. Others have argued that the local court rulings by the county magistrates on civil or commercial matters constituted a form of functional private law that more or less upheld property rights and enforced contracts. Indeed, use of written contracts on properties and transactions has permeated Chinese society at all levels for perhaps two millennia (see Huang 1996, Zelin et al 2004).
The neglect of non-European legal traditions in the current legal origin literature is both peculiar and unfortunate as indigenous legal traditions still prevail in a large part of the developing world today – the operation of Islamic law in many Middle-Eastern countries is a case in point. Even for those that have nominally adopted a Western legal regime, traditional legal norms are still predominant often under the garb of the Western legal lexicon. Indeed, the norms that have realigned and enforced property rights during China’s crucial reform era in the past two decades have had more to do with its indigenous tradition than the transplantation of Western legal institutions.
Debating Chinese legal origin
In recent research (Ma 2011), I present a critical review of the current debates on the Chinese legal tradition. While I view the revisionist legal scholarship as offering a timely re-evaluation on existing wisdom, I find that the often well-intentioned impulse to search for some seeming similarities in specific legal rules or practices may inadvertently blur some fundamental distinctions in these two legal traditions that have historically evolved under very different political contexts. My argument follows Thomas Stephens’ insightful characterisation of the traditional Chinese legal regime as a “disciplinary” mode of justice akin to a military tribunal or “nursery” where deviant behaviour is punished so that order and harmony of the group could continue to prevail. In this system, punishment can be viewed as a means of “education” or correction for future deviant behaviour, and hence, can be inflicted upon the intention of offence rather than its actual committal. Likewise, collective, selective, or substitutive punishment on a group for the wrongdoing of an individual member is justifiable. Hence, the discretionary power of people in the upper hierarchy to punish or reward is of paramount importance. Indeed, the Chinese emperor is the source of penal laws as well as binding precedents that contravened pre-existing rules. Similarly, the legality of a judgement could only be conferred within the administrative or social hierarchy rather than through due processes as in the “adjudicative” mode of legal jurisprudence that evolved in Western Europe.
The disciplinary mode of justice may not necessarily imply total arbitrary justice as, indeed, the requirement of strict adherence to and citation of penal codes and mandatory review of all criminal cases involving corporal punishment within the Qing penal system ensured a degree of internal consistency or transparency. However, I argue that this has less to do with any embryonic form of rule of law than with the practical needs of governing a giant empire – enacting stable and transparent rules is the most effective way for the emperor to control his bureaucrats. The emperor could override his bureaucracy but he could not do it very often if he wanted to retain his system of government.
On the civil side, recent legal scholarship has pointed to the significance of local country magistrates ruling on a vast amount of court cases involving disputes of a civil or commercial nature. However, these rulings, as pointed out decades ago by the Japanese legal scholar Shiga Shuzo, should be more properly defined as “didactic conciliation” which lacked a binding or terminal power as in a Western style legal “adjudication”. Indeed, magisterial ruling merely formed the chain of a dispute resolution process that often involved community sanctioning, social pressure, or even violence. Private customs in China, as the French scholar Jerome Bourgon put it, do not harden into law (see Ma 2011 for the discussion). This is consistent with the proliferation of private customs and the concurrent perception of a near absence of any formal laws on civil and commercial affairs in imperial China.
The most important barometer I use to examine the legal divergence between China and the West – in particular, England – is the contrasting historical development of the legal profession and jurisprudence. In England, the common law grew pari passu with the legal profession centred on the Inns of Court in London. Political transformations such as the 1688 Glorious Revolution allowed increasing control over the making and interpretation of legal rules to a relatively independent legal profession. In contrast, in the state-centred legal system in traditional China, legal secretaries assisting the local county courts could only work in the shadow of the magistrates and the so-called litigation masters providing unofficial legal aide to litigants were simply banned. The growth of an independent legal profession and jurisprudence in China was curtailed by a political structure that carefully guarded the privilege of formulating and interpreting the legal rules within the imperial hierarchy. Here, the divergence in legal regimes is not so much in specific legal contents – de facto property rights especially in land were recognised in Qing China or England – as in legal procedures that in one case conferred power of legitimacy to legal logic and reasoning (expressed through a professional third party) and, in another, to political and other vested interests.
We should bear in mind that the disciplinary mode of justice is neither completely arbitrary justice nor “rule by terror” or a mere domination of the weak by the strong. Indeed, as Stephens argued, for those who accept it as a state of mind, life can be relaxing or even predictable under the system, especially when the leadership is seen as good. Ironically, it could even be a mixed blessing during China’s early reform era when the required changes for state ideology or formal rules often lagged behind pragmatism. Indeed, during the early 1980s, private contracting initiated under the agricultural household responsibility defied state ideology and led to the eventual dissolution of People’s Commune. Also in the 1980s, varying levels of administrative hierarchy offered property rights or patronage to the growth of the non-state sector such as the vibrant township and village enterprises. State policies eventually turned to absorb these innovations which emanated from below. By the 1990s, the official recognition of the private sector called for a more universal form of property rights that led to the promulgation of Western-style laws and procedures.
As pointed out by Clark et al (2008), the Chinese legal system today remains part of the administrative apparatus often with multiple rule-making bodies generating sometimes mutually conflicting rules. Often rule of man prevails over rule of law. The future of China’s legal development is still an unfinished business.
Clark, D, P Murrell, and S Whitting (2008), “The Role of Law in China’s Economic Development”, Chapter 10 in L Brandt and T Rawski(eds.), China’s Great Transformation,Cambridge University Press, 375-428.
Debin Ma (2011), “Law and Economy in Traditional China: A "Legal Origin" Perspective on the Great Divergence”, CEPR Discussion Paper No. 8385. Also appeared as chapter 3 in Debin Ma and Jan Luiten van Zanden(eds.), Law and Long-Term Economic Change, a Eurasian Perspective, Stanford University Press.
Huang, Philip (1996), Civil Justice in China: Representation and Practice in the Qing,Stanford University Press.
La Porta, R, F Lopez-de-Silanes, A Shleifer, and R Vishny (1998), “Law and Finance”, Journal of Political Economy,106:1131-1150.
Stephens, Thomas (1992), Order and Discipline in China, the Shanghai Mixed Court 1911-27, University of Washington Press.
Trubek, David (1972), “Max Weber on Law and the Rise of Capitalism”, Wisconsin Law Review, 720:3.
Zelin, M, J Ocko, and R Gardella (eds.) (2004), Contract and property in early modern China, Stanford University Press.