Chinese Law

A Language Perspective

Deborah Cao

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351951975
• Edition: 1
• Topic: Jura
• Subtopic: Völkerrecht

Studying Chinese law from a linguistic and communicative perspective, this book examines meaning and language in Chinese law. It investigates key notions and concepts of law, the rule of law, and rights and their evolutionary meanings. It examines the linguistic usage and textual features in Chinese legal texts and legal translation, and probes the lawmaking process and the Constitution as speech act and communicative action. Taking a cross-cultural approach, the book applies major Western philosophical thought to Chinese law, in particular the ideas concerning language and communication by such major thinkers as Peirce, Whorf, Gadamer, Habermas, Austin and Searle. The focus of the study is contemporary People's Republic of China; however, the study also traces and links the inherited and introduced cultural and linguistic values and configurations that provide the context in which modern Chinese law operates.

1

Introduction

The Chinese language is unique in its writing form and linguistic structure and in the way it represents the world. It is part of the Chinese cultural treasury and civilization, a constant and visible link between the past and the present, communicating and translating meanings and experiences across time and space. The Chinese written language has always been central to Chinese culture, symbolizing and transmitting its civilization. By the same token, the Chinese language occupies a central place in Chinese law, particularly our understanding of this law, which is a thesis of the book. Law, whether in Chinese or other languages, depends on language for its representation.¹ Law is coded in language. It communicates and operates in and through language, and Chinese law operates in and through the Chinese language.

Much has been written about Chinese law, both in Chinese and English. Some of these works allude at times to the meaning or usage of legal words, but none has made meaning or language as its central concern. Indeed, one may question the significance or relevance of a study of Chinese law from a language perspective as opposed to a study of law in action, and may be sceptical about the practical utility of linguistic analysis of law.² After all, words are just words. Or are they?³

This study begins with the basic assumption that language matters and that linguistic signs as representations of the world and connections to the world are not neutral but culture-specific and distinct. Crucial to this is the complex and grammatical language that people have, that is, the language faculty.⁴ But language does not spring fully formed from the brain; it must be learned from other language speaking humans in a process of ‘nature via nurture’.⁵ Such language learned and nurtured together with our language socialization form an important, if not the most important, part of our cultural resources. It also renders each culture distinct. In this regard, we are reminded that,

As pointed out by the great philosophers of the past, humans are the only creatures who think about themselves thinking. Such an awareness is closely connected with symbolic representation and hence with the language faculty. But language is more than a reflective tool whereby we try to make sense of our thoughts and actions. Through language use we also enter an interactional space that has been partly already shaped for us, a world in which some distinctions seem to matter more than others, a world where every choice we make is partly contingent on what happened before and contributes to the definition of what will happen next.⁶

A long time ago, Aristotle established the Western classical definition of the nature of man, according to which man is the living being who has logos. Logos is normally translated as ‘reason’ or ‘thought’. However, the word also means ‘language’.⁷ It is in language that ‘the world presents itself’ and humans present humans.⁸

This book takes a linguistic turn in the treatment of Chinese law, ‘linguistic’ and ‘language’ broadly conceived. It explores the linguistic aspects of Chinese law, examining the visible and sometimes not so visible language connections in the interaction between the past and the present and between Chinese and non-Chinese. I see both language and law as semiotic systems, that is, they are sign systems that communicate meanings in society.⁹ Both language and law are interactive, relational, referential and evolutionary. I argue that the communicative practices in Chinese culture expressed through the language are constitutive of Chinese legal culture and that the Chinese language is a powerful medium of knowledge rather than just a mirror of Chinese reality. The Chinese language is central to Chinese law in its historical continuity, and to the Chinese conception and communication of law.

How, then, can we understand and interpret the various linguistic manifestations in Chinese law and make sense of what the Chinese language tells us about the law?

An underlying theme of this book is that Chinese cultural values expressed through language provide the context, the background and foreground in which Chinese law operates. In this regard, dominant Chinese cultural values are believed to exert considerable influence over all aspects of Chinese life. According to Schwartz in his study of ancient Chinese civilization and philosophic thought, significant changes in every area – economic, political, religious, and I would add, legal – must be examined within the framework of a civilization in which the modern Western premise of a total qualitative rupture with the traditional past has not occurred.¹⁰ The movements of thought that emerged during the ‘axial age’ were to profoundly shape, directly and indirectly, the entire subsequent history of a culture.¹¹ Further, the problematiques posed by the ‘axial age’ were in intricate and unanticipated ways to enter into the subsequent history of human culture in all of the higher civilizations.¹² In China’s case, the dominant cultural orientations are believed to have their origins in the distant past.¹³ It was during the axial period of pre-imperial China that the fundamental Chinese philosophic thought or dominant cultural orientations were formulated that have had the greatest and most lasting influence over later generations and the entire Chinese civilization.¹⁴

In this connection, I regard culture as knowledge and meaning systems, with symbolic and cognitive dimensions.¹⁵ Semiotic studies of culture tell us that reality is at least in part a cultural construction, and that cultural identity is often based on cultural fictions as well as realities. Members of distinct cultural groups live in distinct life worlds. Such life worlds include complex, specific understandings of basic components of reality such as time, space, person, origin and life, and they provide for members of a community a shared horizon of expectations and a framework for anticipating and interpreting experience.¹⁶ In the Chinese tradition, classical writings and philosophical works from the pre-imperial period form the basic shared Chinese cultural components. These works are often mixtures of expository prose, dialogues, and historical and pseudo-historical anecdotes that aimed to expound the doctrines of one or another thinker or school of thought of early China.¹⁷ The most prominent works are undoubtedly the Confucian classics.¹⁸ They formed an essential part of education in imperial China, and the stories and words they contained became part of the classical Chinese language. The Confucian influence on modern Chinese may not be as explicit or strong as Confucian thought ceased to be the orthodox state ideology, but Confucius has always maintained a strong presence in Chinese culture. It is often alleged by Western commentators that the modern generations of Chinese have not read or studied Confucius and the Analects, and that contemporary Chinese do not know or understand Confucianism or have any of its influence. In an important sense, these commentators fail to realize that the Chinese people, educated and uneducated, do not need to have studied Confucius formally as Confucianism is the grammar and the vocabulary, literally and metaphorically, of Chinese culture and language through which the Chinese live and communicate their life. Chinese culture and Confucian values are transmitted through living as a Chinese and being a Chinese. Culture and Confucian culture exist in different levels. Formal eduction is only one of many means of cultural transmission.¹⁹ This applies to both recent and future generations.²⁰ As has been rightly noted, a common but questionable assumption exists among many Western scholars of China that Karl Marx is more important than Confucius in understanding contemporary China.²¹ Even a cursory glance at the Analects reveals that many words and expressions as well as the ideas of Confucius are used in everyday Chinese. Granted, many people may use these words without being aware of their origin, or they may not able to recite chapter and verse of the Analects. Nevertheless, the influence of not only Confucius but also other major pre-imperial thinkers is pervasive, sometimes subtle (as in the case of yingdang (ought to) discussed in Chapter 4) and sometimes overt (as in dezhi – rule by virtue, the word originally from Confucius, see Chapter 2) and yi fa zhi guo (rule by law, linked to the Legalists, see Chapter 3). Thus, I see the dominant pre-imperial Chinese thought as constituting the foundation or the building blocks of Chinese culture and the Chinese world. This is the reasoning behind Chapter 2, which presents some of the law related words, stories and pronouncements in the Chinese classics.

One consequence of the early dominant Chinese thought is that there has been a lack of philosophical study of law in China, in the past and today. Jurisprudence hardly existed in China, by which I mean, the thinking and inquiry that ask the most fundamental questions about law, about the nature of law, about the authority and legitimacy of law, and the epistemological and ontological probing into law. Falixue or fazhexue (jurisprudence or legal philosophy) is not just a new word in Chinese, but also a new concept and a new intellectual activity. There may be many reasons for this absence. One could speculate that traditional Chinese philosophy, different as it was from Western philosophy, never devoted its attention to or developed epistemology or ontology.²² This does not make Chinese philosophy less philosophical or Confucius less of a philosopher. However, in Chinese legal studies, there was not even an equivalent of Confucius, asking the basic law questions. The Legalists, despite the name, were more interested in how law could be used as an instrument and deterrent. What imperial China had instead was lüxue (the study of imperial codes), the annotation of and commentary on the successive imperial codes, and there were scattered commentaries on some well-known cases.²³ The lack of legal philosophical debates in China could be related to the Confucian disinterest in law, the authoritarian rule, and I speculate that it may also have something to do with the nature of the Chinese language for its concreteness and its lack of abstractness. In modern China in the past one hundred years, there have been political and other obstacles that are unhelpful to such pursuit. However, it seems to me that China needs a Kelsen, Hart, or Raz, or a modern day Confucius, in jurisprudence. This is necessary given China’s authoritarian tradition and because law and the conception of law in China have been different as in Western societies. I also believe this goes beyond being a deficiency associated only with authoritarian China. There has been no Kelsen, Hart or Raz in other Asian or East Asian societies that are not practising communism or fundamental fanaticism. One wonders why it is the case. Self-reflexive questioning in the thinking of the nature and essence of law seems recessive in these societies.

On another level, I believe that language is a cultural resource, not just a means of communication or a window on mental reality. Language is an aggregate of features, tendencies and acts that are sometimes the background and at other times the foreground for the constitution of the social world in which we live.²⁴ In Chinese culture, the language is the carrier of knowledge and meanings, and has provided a mental bond as well as a stage, a backdrop, and resources and means for communicating and continuing with its cultural tradition. Conversely, the Chinese language is also the product of forces of cultural unification and centralization, a set of cultural practices. Moreover, it is a system of communication that allows for intersubjective representations of the Chinese social order and helps people to use such representations for constitutive social acts. Equally importantly, we recognize that culture is coherent and consistent, not random bits and pieces diffused across the landscape. Culture forms consistent wholes and its composite elements fit in leading to an organically patterned worldview.²⁵ This by no means excludes contradictory or conflicting variants of views. Law is part of the larger coherent culture as a system of signs, not just a set of norms and rules. For our purpose, Chinese legal culture is part of an integrated whole, ‘a system of symbols, language, and diffusely shared attitudes that produced a common set of legal assumptions and beliefs’.²⁶ Thus, cultural contextualization of Chinese law is both necessary and crucial.

Seen in this light, one could say that it may be overly general or simplistic to characterize Chinese law, traditional or contemporary, either as Confucianization or Westernization. Chinese law is part of a complex, and often intriguing, cultural narrative and an ongoing storytelling. For instance, in this story, we see and hear the ambivalence Chinese culture has always had towards law. Linguistically, this is found in the expressions fazhi (rule of law) and fazhi (rule by law), yi fa zhi guo (rule of law) and yi fa zhi guo (rule by law), quanli (power) and quanli (rights) (these homonyms with different meanings are discussed in Chapters 3 and 5). At the same time, we also see and hear the familiar echo, the recurring themes and the common behaviour patterns of the past in modern form in law and elsewhere, whether it is in yi fa zhi guo (rule by law), dezhi (rule by virtue), yanda (severe punishment as deterrent), tanbai (confession), zhulian (guilty by association),²⁷ or Chinese judicial and other officers behaving like clones of ancient magistrates, bao xi bu bao you (reporting only the good news, not the bad) in public life, and lawyers occasionally being singled out and prosecuted and persecuted for simply doing what lawyers do. If we look back and around (as do some of the chapters in this book), many aspect...