Associate Professor of Law, Cellphone: 186-1105-8756

Zhang Shoudong

Law School, CUPL

Sem A 2012/13

Course Title: Chinese Legal History

Course Duration: One semester (36 hrs)

Credit Units: 2

Language of Instruction: English

Course Aims

This course aims to help the students understanding the dynamics of Confucianism and Legalism, the Tang Code, and the judicial decisions made by the imperial and the Republican courts in administration of criminal and civil justice. Robust discussions in the 2 hours each week at the classroom will focus on the understanding of the nature and function of traditional Chinese law and its modernization drive.

Course Intended Learning Outcomes

The students is expected to:

-understand the intellectual foundations of traditional Chinese law ;

-appreciate the values and principles of Chinese ancient and modern law codes;

-analyse the legal reasoning of traditional Chinese adjudication in administration of criminal and civil justice;

-comprehend the ADR tradition in terms of Chinese legal culture;

-understand the relation of Confucianism and constitutionalism, the interaction of politics and law in structuring the nature and contents of modern Chinese law.

-assess contemporary Chinese law with their deep understanding of traditional Chinese law and culture;

-conduct legal research and act as consultants in terms of Chinese legal tradition and contemporary Chinese legal background.

Teaching and learning activities

This is a seminar. Each student will be assigned to make presentation at least once. Group discussions wil be organized and students should answer questions raised from the beforehand assigned reading items. Teacher is to give very short lecture before or/and after the students group discussions and presentations.

Assessment

1. Completion of documentary exercisesand presentations 10%
2. Class Participation 10%
3. Final Essay80%

Syllabus

The History, Culture, and Modernization of Chinese Law addresses the intellectual foundation, the textual structure and adjudication of traditional Chinese law. With emphasis on the modern transition of this time honored legal tradition, the course will explain why and how an Eastern Asian model law had been transformed since 1902. Against this background, the students can not only appreciate the essentials of tradition of Chinese legal system, but also the nature and function of the contemporary Chinese law. Extensive reading materials drawn from comprehensive writings of both Chinese and Western scholars will be provided to help the students understanding the dynamics of Confucianism and Legalism, the Tang Code, and the judicial decisions made by the imperial and the Republican courts. Robust discussions in the 2 hours each week classroom will focus on the understanding of the nature and function of tradition Chinese law and its modernization drive.

Part I : The Intellectual Foundations of Chinese Law[1]

As you read the materials, please keep in mind the questions concerning the ancient Chinese thinkers point of view of human nature and its relation to the goal and function of law in ordering family and state. What is the difference between the Confucianism and the Legalism as regard to the role of ruler and law in shaping social order? Do they have any idea of protecting individual property?How about their view of administering criminal justice? Is there a traditional Chinese version of “Laws of Nature”? How will you evaluate the Confucianism from the perspective of civil society?

1. Confucius, The Analects, translated by James Legge, 1893，http://www.sacred-texts.com/cfu/conf1.htm (Other excellent translations are: The Analects of Confucius, translated and annotated by Arthur Waley, Macmillan Company, 1938; The Analects (Lun yü) , translated with an introduction by D.C. Lau, Penguin Books, 1979. 2nd ed. Hong Kong : Chinese University Press, 1992. )

2. Mencius, translated by James Legge，http://hk.ctext.org/mengzi

3. Shang Yang, The Book of Lord Shang, A Classic of the Chinese School of Law. Translated from the Chinese with Introduction and Notes by Dr. J.J.L. Duyvendak. Originally published by Arthur Probsthain, London, 1928. It is available at http://ctext.org/shang-jun-shu. Please read the following passages:

Chapter I, Paragraph 1, Reform of the Law; Chapter 2, Paragraph 5, Discussion about the People; Paragraph 7, Opening and Debarring; Chapter 3, Paragraph 8, Unification of Words; Paragraph 9,Establishing Laws; Paragraph 13, Making Orders Strict; Paragraph 14, Cultivation of the Right Standard; Chapter 4, Paragraph 17, Rewards and Punishments; Chapter 5, Paragraph 25, Attention to Law; Paragraph 26, Fixing of Rights and Duties.

4. The complete works of Han Fei Tzu, A classic of Chinese political science. Translator, Wenkui Liao, http://www2.iath.virginia.edu/saxon/servlet/SaxonServlet?source=xwomen/texts/hanfei.xml&style=xwomen/xsl/dynaxml.xsl&doc.view=tocc&chunk.id=tpage&toc.depth=1&toc.id=0&doc.lang=english

Book Two, Chapter VII. The Two Handles; Chapter VIII. Wielding the Sceptre. Book Four, Chapter XI. Solitary Indignation; Chapter XII. Difficulties in the Way of Persuation; Chapter XIV. Ministers Apt to Betray, Molest, or Murder the Ruler. Book Nine, Chapter XXX. Inner Congeries of Sayings, The Upper Series: Seven Tacts. Book Ten, Chapter XXXI. Inner Congeries of Sayings, The Lower Series: Six Minutiae . Book Eleven, Chapter XXXII. Outer Congeries of Sayings, The Upper Left Series. Book Twelve, Chapter XXXIII. Outer Congeries of Sayings, The Lower Left Series. Book Thirteen, Chapter XXXIV. Outer Songeries of Sayings, The Upper Right Series.

Book Fourteen,Chapter XXXV. Outer Congeries of Sayings, The Lower Right Series. Book Sixteen, Chapter XXXVIII. Criticism of the Ancients, Series Three. Book Seventeen, Chapter XL. A Critique of the Doctrine of Position, Chapter XLIII. Deciding Between Two Legalistic Doctrines, Chapter XLIV. On Assumers. Book Eighteen, Chapter XLVI. Six Contrarieties, Chapter XLVII. Eight Fallacies, Chapter XLVIII. Eight Canons. Book Nineteen, Chapter XLIX. Five Vermin: A Pathological Analysis of Politics, Chapter L. Learned Celebrities: A Critical Estimate of Confucians and Mohists.

Book Twenty, Chapter LII. The Lord of Men, Chapter LIII. Making Orders Trim, Chapter LIV. Surmising the Mentality of the People: A Psychological Analysis of Politics.

5. Derk Bodde, “Chinese ‘Laws of Nature’: A Reconsideration,” Harvard Journal of Asiatic Studies, Vol. 39, No. 1 (Jun., 1979), pp. 139-155.

6. John W. Head and Yanping Wang,Law codes in dynastic China: a synopsis of Chinese legal history in the thirty centuries from Zhou to Qing, Carolina Academic Press, 2005. Chapter I, The Long Reach of Chinese Law, pp. 3-22; Chapter II, Confucianists and Legalists, pp. 23-60.

7. Kung-Ch'uean Hsiao, A History of Chinese Political Thought,Vol.1, Princeton University Press, 1979. Chapter 2, Confucius, pp.79-142; Chapter 3, Mencius and Hsün Tzu, pp. 143-213; Chapter 7, Lord Shang and Han Fei Tzu, pp. 368-424.

8. Peter Nosco, Confucian Perspectives on Civil society and Government, and Henry Rosemont, Jr., Civil Society, Government, and Confucianism: A Commentary, Confucian Political Ethics, Edited by Daniel A. Bell, Princeton University Press, 2008.

9. Zhengyuan Fu, China's Legalists: The Earliest Totalitarians and Their Art of Ruling (Armonk, New York: ME Sharpe, 1996), Chapter 6, The impact of the Legalists on the Imperial State, pp.107-126.

10. Derk Bodde, Clarence Morris, Law in Imperial China: Exemplified by 190 Ch'ing Dynasty Cases, University of Pennsylvania Press, 1971, Part One, Preliminary Essay on Concepts and Practices, I, Basic Concepts of Chinese Law, pp.11-51.

Part II: Codes from Tang to Qing[2]

As you reading the materials, please consider the following questions: From the history of legislation which leads to the formation of the T'ang Code, what can be said of the nature and function of it? Can you identify the elements of Confuciunism and Legalism in forming the nature of the T'ang Code? Why the T'ang Code became the model law of the succeeding Chinese dynasties? Is there any difference between the T'ang Code and The Great Qing Code in terms of structure and function? From the structures and contents of these codes, what can be said of imperial Chinese law in terms of civil law? What are the main characterisitics of traditional Chinese written law with respect of administration of criminal justice and property rights protection? What is your opinion of the “Chinese Legal System”?

1. John W. Head and Yanping Wang,Law codes in dynastic China: a synopsis of Chinese legal history in the thirty centuries from Zhou to Qing, Chapter IV. B. The Tang Code and Its Setting. pp. 115-136; Chapter VI. B. pp. 192-226.

2. The T'ang Code, Volume I, General Principles. Translated with an Introduction by Wallace Johnson, Princeton University Press, 1979. Part I, Introduction, pp. 1-48.

3. The T'ang Code, Volume II, Specific Articles. Translated with an Introduction by Wallace Johnson, Princeton University Press, 1997. Introduction to the Specific Articles, pp.1-11; Chapter XVII(Violence and robbery); Chapters XXI-XXIV(Assault and accusations); Chapters XXVI-XXVII(Miscellaneous articles); Chapters XXIX-XXX(Judgment and prison).

4. Brian E. McKnight, T'ang Law and Later Law: The Roots of Continuity, Journal of the American Oriental Society, Vol. 115, No. 3 (Jul. - Sep., 1995), pp. 410-420.

5. The Great Qing Code. Translated by William C. Jones, with assistance of Tianquan Cheng and Yongling Jiang, Oxford: Clarendon Press, 1994. Introduction, pp. 1-28; Part III, [Laws Relating to]The Board of Revenue, Chapter 2, Fields and Houses; Chapter 8, Monetary Obligations; Part VI, [Laws Relating to]The Board of Punishments, Chapters 1-13, General Public Disorder and Theft, Homicide, Affrays and Blows; Chapters 15-16, Procedure; Chapter 19, Fornication; Chapters 24-25, Judgments and Prisoners.

Part III: Administration of Justice in Imperial China

This part deals with the laws in action with respect to criminal and civil justice, formal and informal justice. The following questions are suggested to think about while you are reading: What are your comments on the legal reasoning of the opposing parties in the A Yun Case? How the written law became “living law” when the law were put into practice? What is the role of Confucianist family ethics in the decision of the Case of Hsü Chung-wei? From the case of Yang Nai-wu and Hsiao-pai-ts'ai, what is your evaluation of the criminal justice in Late Imperial China? Why Capital Appeals were allowed and what role it played in tems of imperial politics and procedural justice? What can be said of the conception of justice in terms of “The Right Degree of Pain” in punishments of Imperial China? Are there rights of property in laws and customs of traditional Chinese society? How will you assess the county courts administration of civil justice when they were failed to prevent violent disputes over property? What is the approach of the local magistrate to the civil cases from the perspective of Magistrate Handbooks? Are there any difference between the magistrates’ approach to civil and criminal justice? Why? What factors contributed to the informal justice such as mediation in Imperial China? How will you evaluate the dynamic of formal and informal justice? Is there a “Third Realm” of Qing civil justice? With the answer of all the preceding questions, what is your overall evaluation of the law in action in Imperial China? Is there any difference of your opinion on the Imperial law in terms of actual adjudication in contrast to the law in codes?

A : Criminal Justice[3]

1. Derk Bodde, Clarence Morris, Law in Imperial China: Exemplified by 190 Ch'ing Dynasty Cases, University of Pennsylvania Press, 1971, Part One, Preliminary Essay on Concepts and Practices, II-VI.

2. John D. Langlois, Jr. “ ‘Living Law’ in Sung and Yuan Jurisprudence, ”Harvard Journal of Asiatic Studies, Vol. 41, No. 1 (Jun., 1981), pp. 165-217.

3. The Case of Hsü Chung-wei(1780).

4. William P. Alford, “Of Arsenic And Old Laws: Looking Anew At Criminal Justice in Late Imperial China,” 72 Calif. L. Rev. 1180.

5. Jonathan Ocko, "I'll Take It All the Way to Beijing: Capital Appeals in the Qing," Journal of Asian Studies, Vol. 47, No. 2. (May, 1988), pp. 291-315.

6. Klaus Mühlhahn, Criminal Justice in China – A History, Cambridge: Harvard University Press 2009. “The Right Degree of Pain: Imperial China,”pp.14-57.

B: Civil Justice: Contract, Property, Informal Mediation and Formal Adjudication[4]

1. Realms of Freedom in Modern China, edited by William C. Kirby, Stanford University Press, 2004. Madeleine Zelin, “Economic Freedom in Late Imperial China, ”pp. 57-83; Jérôme Bourgon, “Rights, Freedoms, and Customs in the Making of Chinese Civil Law, 1900-1936.”

2. Christopher Gardner, “Chinese Laws and Customs,” Journal of the Royal Asiatic Society of Great Britain and Ireland, New Series, Vol. 15,No. 3 (Jul., 1883), pp. 221-236.

3. Madeleine Zelin, Jonathan K. Ocko, and Robert Gardella, editors, Contract and Property in Early Modern China. Stanford: Stanford University Press, 2004. Madeleine Zelin, “A Critique of Rights of Property in Prewar China,”pp.17-36; Thomas Buoye, “Litigation, Legitimacy, and Lethal Violence: Why County Courts Failed to Prevent Violent Disputes over Property in Eighteenth-Century China, ”pp.94-119; Anne Osborne, “Property, Taxes, and State Protection of Rights,” pp.120-158.

4. Philip Huang, Civil Justice in China: Representation and Practice, pp.71-75, ("Informal Justice"); pp. 76-109, ("Formal Justice")

5. Jerome A. Cohen, “Chinese Mediation on the Eve of Modernization, ” California Law Review 54(1966).

6. Philip Huang, Between Informal Mediation and Formal Adjudication: The Third Realm of Qing Civil Justice, Modern China, Vol. 19, No. 3 (Jul., 1993), pp. 251-298.

7. Philip Huang, Civil Adjudication in China, Past and Present, Modern China, Vol. 32, No. 2 (Apr., 2006), pp. 135-180.

Part IV: The Background of Legal Reform: Extraterritoriality, Confucianism, and Civil Society in Late Qing Legal Reform[5]

This part is a colletion of reading materials addresses the international, intellectual, and social background of legal reform in late Qing. Please think about the subsequent questions: Why the Qing dynasty embarked on a far reaching overall legal reform with which it broke through a time honoured legal tradition? What is the role of state in transforming traditional Chinese law? Is there a Confucian democracy? What is the relation between legal modernization and democratic drive in late Qing ?How will you assess the dynamic of civil society and state in the legal reform? What can be expected of late Qing legal modernization with the perspective of the current internal and international circumstances？

1. Edward W. Capen, “The Western Influence in China,” The Journal of Race Development, Vol. 3, No. 4 (Apr., 1913), pp. 412-437.

2. Harold Scott Quigley, “Extraterritoriality in China,” The American Journal of International Law, Vol. 20, No. 1 (Jan., 1926), pp. 46-68.

3. Crawford M. Bishop, “American Extraterritorial Jurisdiction in China,” The American Journal of International Law, Vol. 20, No. 2 (Apr., 1926), pp. 281-299.