Advertisement

The Flag of Desires: The Humanity Basis of Contract and the Evolution of Contractual Rights

  • Yunsheng LiuEmail author
Chapter
  • 4 Downloads

Abstract

Malinowski holds that the decisive factor of culture came from human’s basic physiological needs and the derived social needs, which were sometimes regarded as certain means. In the light of the comparison between Chinese and western theory of human nature, it seems that we can find a clear and strong progressive line between man’s physiological needs and social needs, that is, human beings set up various social desires to satisfy their natural desires and the need for the satisfaction of both kinds of desires has generated social concepts such as education, law, morality and social groups like economic organizations. The core of this chapter explores the humanity basis and social foundation of contracts based on the comparison of Chinese and western ideas of the evil of human nature, and finds out different qualities and causes of Chinese and western contract culture. Western contract culture focuses on the satisfaction of human desires. Therefore, the contract takes individual rights, freedom and equality as the core, and the sociological and economic theories guiding contracts are the so-called “rational person” or “enterprise spirit” and the “natural obligations” of the government and state to protect the right to freedom. On the contrary, the contract spirit of traditional Chinese culture puts emphasis on restraining or even offsetting individual desires with “rite”, “law” under the premise of satisfying individual desires, and thus guiding them with the ethical concept of “mutual aid” for both families and the society. In terms of contract spirit, Chinese and western cultures tend to be two extremes due to different values and institutions. Western countries advocate freedom of contract and individual rights, regarding them as the “natural obligations” of the law and government; whereas those of China are weakened or even replaced by the parental authority of “common good” (families and clans, the state). However, the traditional culture of “rite” and “law” did not completely block the path of realizing human desires, and individual desires always existed and grew under the waves of family and royalty histories. With the passage of time, contractual rights have grown constantly and become an independent form of right in the era of the Republic of China. Conversely, western freedom of contract was hindered in the early 20th century when individual rights and contract freedom evolved to socialization, aiming to safeguard social public interests and good customs. In conclusion, the spiritual changes of Chinese and western contract culture have been in continuous recurrence and development with their respective historical and cultural foundations, embodying different directions of Chinese and western cultures.

References

  1. 1.
    Adamson Hoebel, E. 1993. The Law of Primitive Man, trans. Zhou Yong, 234. China Social Sciences Press.Google Scholar
  2. 2.
    Morgan, L.H. 1995. Ancient Society (The translated version), 6. The Commercial Press.Google Scholar
  3. 3.
    Sabine, George H. 1986. A History of Political Theory, trans. Liu Shan, et al., 397. The Commercial Press.Google Scholar
  4. 4.
    Kardiner, Abram, and Edward Preble, They Studied Man, trans. Kaixiang Sun, 23, 54–88. SDX Joint Publishing Company.Google Scholar
  5. 5.
    Li, Zehou. 1984. Criticism of Critical Philosophy, 333. People’s Publishing House.Google Scholar
  6. 6.
    Liu, Chang. 1987. The History in Mind, 34–35. Sichuan People’s Publishing House.Google Scholar
  7. 7.
    Wang, Zhe, and Yaozhong Du. 1996. The Status of Freedom in Law. Jilin Normal University Journal (3).Google Scholar
  8. 8.
    Su, Haopeng. 1999. On the historical background and value of the freedom of contract. Philosophy of Law (5).Google Scholar
  9. 9.
    Fu, Jingkun. 1997. Contract Law in the Twentieth Century. Law Press China, Section II of Chapter One; Grant, Gilmore. The death of contract, trans. Cao Shibing, et al. Civil and Commercial Law Review 4.Google Scholar
  10. 10.
    Wang, Mingming. 1997. The Culture and Power in the View of Village, 122. SDX Joint Publishing Company.Google Scholar
  11. 11.
    Huang, Zongxi, Development and Evolution of Traditional Academic Thoughts in Ming Dynasty, vol. 2.Google Scholar
  12. 12.
    Webster, A. 1987. Introduction to the Sociology of Development (Chinese version), 29. Huaxia Publishing House.Google Scholar
  13. 13.
    Zhang, Jinfan. 1988. Brief Review of Legal History, 144. Shanxi People’s Publishing House.Google Scholar
  14. 14.
    Kong, Lingqi. 1994. On the guilds of handicraft industry in Suzhou in Qing Dynasty. Social Science Front (6).Google Scholar
  15. 15.
    [Japan] Tachibana, Shiraki. 1996. Research on Chinese Ideologies, 276–2788. Nippon Hyoron Sha Co. Ltd..Google Scholar
  16. 16.
    Wang, Yaxin and Zhiping Liang (ed.). 1998. Civil Trials and Private Contracts in Ming and Qing Dynasties, 360–362. Law Press China.Google Scholar
  17. 17.
    [Japan] Hiroaki, Terada. 1999. The civil trials in Qing Dynasty and the modern legal order of western Europe, trans. Pan Jian. Peking University Law Journal (2).Google Scholar
  18. 18.
    Zhao, Yunqi. 1998. On land sale and purchase under the system of land equalization in Tang Dynasty. Social Science Front (2).Google Scholar
  19. 19.
    Yang, Jiping. 1998. Re-discussion of the land distribution in Dunhuang household registration in Tang Dynasty. Researches in Chinese Economic History (3).Google Scholar
  20. 20.
    Tang, Renwu. 1996. On the land tenancy relations in Tang Dynasty. Hebei Normal University (Social Sciences Edition) (4).Google Scholar
  21. 21.
    Gong, Rufu, and Xiaojian Yao. 1998. The neo-confucianist Li Chunnian in Southern song dynasty and the implementation of Jing Jie Fa. Journal of Yantai Normal University (3).Google Scholar
  22. 22.
    Zhao, Gang. 1996. History of China’s Economic Systems, part II, The Labor Market. Linking Publishing Co., Ltd.Google Scholar
  23. 23.
    Zhang, Jinfan. 1998. A Comprehensive Review of the Civil Law in Qing Dynasty, 18. China University of Political Science and Law Press.Google Scholar
  24. 24.
    Fu, Yiling. 1961. Rural Social Economy in Ming and Qing Dynasties, 71. SDX Joint Publishing Company.Google Scholar
  25. 25.
    Hu, Pingsheng, and Song Shaohua. 1997. The significance of the newly discovered bamboo slips in Zou Ma Lou of Changsha City, Hunan Province. Guangming Daily, Jan 14.Google Scholar
  26. 26.
    Li, Sanmou. 1995. On the particularity of the tenancy system in South China in Ming and Qing Dynasties. Agricultural History of China (2).Google Scholar
  27. 27.
    Liu, Kexiang. 1986. The Formation of the Permanent Tenancy in Qing Dynasty · Regional Distribution and Development, 161. The 8th Collection of the Institute of Economics, Chinese Academy of Social Sciences. China Social Sciences Press.Google Scholar
  28. 28.
    Lan, Yong. 1996. Study on the name and functions of the Townsmen Association of Xi’an businessmen in Qing Dynasty. Journal of Chinese Historical Studies (4).Google Scholar
  29. 29.
    Huang, Guangguo. 1990. Favor and Face: Power Game of Chinese, 19–22. Taipei Chuliu Publisher.Google Scholar
  30. 30.
    Hu, Changqing. 1934. The Overview of Chinese Civil Law, 36. The Commercial Press of China.Google Scholar

Copyright information

© Law Press China 2020

Authors and Affiliations

  1. 1.Law School, Research Centre of Real EstateGuangzhou UniversityGuangzhouChina

Personalised recommendations