Abstract
There is no denial that “legality” can be a contested term. We operationalize the word legality in this book to embody law’s rationale, spirit, and authority.
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Notes
- 1.
This sentiment coexists with the perceived tendency of western scholars (particularly North American scholars) who find in China an “unfinished, failed or incomplete” modernity (see Jones 2011).
- 2.
Gu Hongming was born in Malaysia to a rubber plantation superintendent father and his Portuguese wife. Gu has received extensive Western educational training since the tender age of ten. He eventually earned multiple degrees, including a graduate degree in literature from the University of Edinburgh and a diploma in Civil Engineering from the University of Leipzig. He also studied law in Paris. Gu returned to China and served as an advisor for ranking officials in the late Qing imperial court for 20 years. His spirited defense of the Chinese traditional culture at the dawn of the twentieth century was intriguing given his western background and at a time of substantial change in Chinese history.
- 3.
Gu (1921) made what could be taken as a condescending comment in a New York Times article titled “Uncivilized United States” that at that time (ca. 1920s), the only real spiritual things which the Americans as a nation have done…, are “the work of Poe’s Annabel Lee” and “the music of the plantation songs of the negroes in America.” He views civilization as a state of mind and heart—a spiritual life. He would go on to end the article by calling America, Russia, and China the three great future empires of the world.
- 4.
The Chinese history could certainly attest to the resilience of Confucianism as a state religion—the source of ethics embraced by the state and enforced upon the Chinese people. This is true not only under Han emperors in large, unified empires such as Han, Tang, and Ming; it is also true in Yuan, Qing, and other dynasties under the alien rulers.
- 5.
Liang was to be remembered as a patriotic revolutionary of his time, while Gu was portrayed as the epitome of an ultraconservative. Gu would later become a English professor at Peking University. The queue and late Qing attire he wore to his lectures provided ample inspiration for the comics. Gu was fluent in English, German, French, and Chinese. Gu’s writings in English were read broadly outside the country particularly in the first half of the twentieth century. Substantial domestic interest in Gu’s work and in reevaluating his patriotism would reemerge in the first decade of the twenty-first century when the spirit of the Chinese becomes once again a highly relevant subject.
- 6.
By placing national dignity above individual dignity, Liang’s philosophy for national salvation contradicts some of the prevailing Western assumptions on human rights, human dignity, and justice. For example, a life-defining group affiliation is seen as an “existential surrender” of individuality and individual rights, not an enlargement of the self (see Kateb 2011). And, rights and privileges obtained by the group do not necessarily trickle down to the individuals in the group (however, large or small that group is). This exemplifies why human rights should be contextualized and culturally relative (Sharma 2006).
- 7.
Scholars suggest that the attitude of indifference toward violence is closely related to one’s own experience (e.g., Evans 1996). In his book on Chinese criminal justice, Muhlhahn (2009) suggests that long-term exposure to war and revolution makes people more insensitive to the suffering of the others.
- 8.
Ah Q is unsympathetic to his own suffering and the pains of the others. The numbed, stupefied state of mind among the Chinese is what Lu Xun wants to awaken.
- 9.
For example, Lubman (1999) refers only to “the Chinese legal institutions” but not “the Chinese legal system” throughout his book. The major causes of concern for him are the politicized nature of Chinese legal institutions and China’s lack of unified concept of law. Lubman’s “startling claim” (see Peerenboom 2002) that China does not even have a legal system is subtly criticized in Peerenboom’s concluding chapter as Eurocentric and self-contradictory (i.e., Lubman advocates not to measure China using liberal democratic rule of law standards on the one hand, yet determines himself that China does not have a legal system with the implicit application of western standards).
- 10.
The exceptions are when the Daoists or the Legalists are in control of the imperial courts. They would advocate making either dao or fa as the sole norm.
- 11.
Portraits of Shang Yang and Han Fei are carved in the stone wall of a Basic People’s Court in J Province (see Photo 1.1). Images of Babylonian law and Roman law are also found (see Photos 1.2 and 1.3). The design idea came from the young court President whom the researchers met on a court visit trip (see Chap. 7 for other observations of his court). The Chinese legalists are placed on the east side wall, while the western legal inspirations are placed on the west side.
- 12.
Pye (1968/1992: pp. 50–66) gives an intriguing discussion on the so-called “Middle Kingdom complex” which could explain the thin line between national pride and racial arrogance. Chinese Emperors consider all foreigners as barbarians.
- 13.
A similar contrast has been drawn between the communist ideal (where all laws shall cease to exist) and the (bourgeois) rule of law (where law is omnipresent) immediately after the establishment of former Soviet Union and the People’s Republic of China in the twentieth century.
- 14.
Aristotle’s “oriental despotism” and the “peoples of Asia” are likely to be limited to the reference of Persia which was conquered by his student Alexander the Great.
- 15.
According to the writings of Mencius, a key Confucian figure after Confucius, deposing an evil ruler (in which case a mere villain) is justified on the ground of upholding the dao. In other words, a ruler is to be obeyed as long as he remains a benevolent leader who attends to the needs of the ruled.
- 16.
The two concepts (rule by law, fazhi and rule of law, also fazhi), although written differently, are pronounced identically in Chinese pinyin.
- 17.
Billias’s (2009) conceptualization of American Constitutionalism is much broader than that of the other scholars. He includes not only the U.S. Constitution, but also the Declaration of Independence, the first state constitutions, the Articles of Confederation, the Federalist, and the Bill of rights.
- 18.
Shan-Gan-Ning Border Area with Yan’an as its capital resulted from the Second United Front between the CCP and the KMT in 1937. It is carved out of three adjacent provinces: Shaanxi, Gansu, and Ningxia in north-central China.
- 19.
Party cadres and their work should come “From the People; Back to the People” (or ).
- 20.
It can be argued that in everyday life Confucian ethics remained as the basis for social order.
- 21.
In Amendment one to the Chinese Constitution approved on April 12, 1998 (at the 1st Session of the 7th NPC meeting), the sentence which states “The right to the use of land may be transferred according to law” was added to the fourth paragraph of Article 10 of the Constitution.
- 22.
Approved at the 1st Session of the 8th NPC meeting on March 29, 1993, specific revisions (in italics) were made in the seventh paragraph of the Preamble of the Constitution: 1) “China is at the primary stage of socialism” was added to the beginning of the paragraph; and 2) two new words were added so the conclusion of this paragraph reads “…step by step to turn China into a socialist country with prosperity and power, democracy and culture”.
- 23.
Constitutional Amendment two approved on March 29, 1993 includes the following sentence “The state has put into practice a socialist market economy. The State strengthens formulating economic laws, improves macro adjustment and control and forbids according to law any units or individuals from interfering with the social economic order.” This Constitutional Amendment sets the tone for the strict enforcement of Chap. 3, Part II of the Chinese Criminal Law with specific regard to punishing Crimes of Disrupting the Order of Socialist Market Economy.” We will elaborate on the practice with criminal case examples in later chapters.
- 24.
“Three represents”: the CCP should be representative to advanced social productive forces, advanced culture, and the interests of the overwhelming majority. They are credited to CCP General Secretary Jiang Zemin and they have become the guiding ideology of the Party since its 16th Party Congress in 2002.
- 25.
The word “counter-revolutionary activities” originally included in Article 28 of the Chinese Constitution was dropped with the adoption of the Third Amendment on March 15 at the 9th NPC meeting. Article 28 now reads “The State maintains public order and suppresses treasonable and other criminal activities that endanger State security; it penalizes actions that endanger public security and disrupt the socialist economy and other criminal activities, and punishes and reforms criminals.” (replacement language in italics).
- 26.
For example, given the mounting international and domestic pressure, the Fourth Amendment of Chinese Constitution was adopted at the 10th National People’s Congress meeting (March 14, 2004) with a symbolic, declarative sentence added to the third paragraph in Article 33, stating that “The State respects and preserves human rights”.
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He, N. (2014). Chinese Legality. In: Chinese Criminal Trials. Springer, New York, NY. https://doi.org/10.1007/978-1-4614-8205-5_1
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