Order and Discipline in China

The Shanghai Mixed Court 1911-1927

Thomas B. Stephens

• Publisher: University of Washington Press
• Year: 2016
• ISBN:
  9780295804026
• Topic: Histoire
• Subtopic: Histoire de la Chine

China's traditional system of dispute resolution and maintenance of order in society has been treated by Western scholars as legal history, but because the Chinese system is radically different from European systems in its conceptual structure and therefore does not fit into the familiar categories and models of Western law and jurisprudence, such treatment has been inadequate and often misleading. In Order and Discipline in China, Thomas B. Stephens provides a new approach, methodology, and theoretical framework for the interpretation of traditional Chinese "law." Stephens argues convincingly that Chinese society has always operated according to the disciplinary system of order, ni which hierarchy is established by actual power, and he provides a thorough methodology and framework for understanding disciplinary theory. He discusses the system, showing it not the random (or even unjust) tyranny it may sometimes appear to the Western, legally oriented mind but an effective system that successfully guided China for centuries. The study is not merely historical, but provides insights into Chinese ways of thinking about social relationships, dispute resolution, and the enforcement of civil obligations that are vital to intercultural understanding today. His study is based on the activities of the Mixed Court of the International Settlement at Shanghai, which dealth with legal problems concerning Chinese people within the representative, or "assessor." The Mixed Court conventionally has been looked upon as a disciplinary tribunal enforcing a system of dispute resolution and the maintenance of social order upon the principles of disciplinary theory. The Mixed Court is a convenient point from which to measure the legal and disciplinary systems against each other and to study them in conflict. Although Western powers tried to interpret the court in legal terms, it responds much more convincingly to analysis according to the disciplinary system: it provided its right to rule by the abililty to enforce its decisions, and it decided cases not, as claimed, by Chinese laws (which actually did not exist) but according to those principles established by the Western consuls. Order and Disipline in China will be of interest not only to legal scholars and students of Chinese history and society, but also to students of social order and international relations throughout the world. It also offers practical assistance to Westerners dealing with Chinese business relations, social and political affairs, or dispute settlement.

CHAPTER 1

Order without Law

When traditional Chinese concepts and ideals of social order, interpersonal relations and obligations, and dispute resolution are viewed against the familiar models of Western jurisprudence, it is found that the two by no means coincide. This nonconformity has long embarrassed Western jurists attempting to interpret the Chinese system in terms of Western juristic thought and to analyze it in terms of comparative law. The disparities are notorious and profound. It was the nature and extent of these disparities that gave rise to extraterritoriality in China and gave the Western powers reason to continue it as late as 1943.

The fundamental difficulty is that the Chinese system simply does not yield to treatment in terms of Western jurisprudence or legal theory. The realities of dispute resolution and the maintenance of social order in traditional China do not fit, and cannot be made to fit, into the categories, constructs, and relationships of Western jurisprudence. An entirely different framework of theory, unrelated to jurisprudence, is called for if the realities of the Chinese system are to be made intelligible in Western thought patterns.

In this chapter, therefore, an alternative basis of theory upon which to interpret the Chinese system is proposed, namely the theory of disciplinary systems of order. A much more realistic and credible picture of how the Chinese system actually worked and how it differed from the Western can be projected in terms of the principles of disciplinary theory than any which is possible in terms of conventional legal theory.

We are not greatly concerned here with resemblances or differences in the substantive content of the respective norms of preferred conduct to be found in the two systems. In many respects there were close resemblances. Both systems assumed that it is wrong to murder or steal, that fraud should be discouraged and punished, that debts must be paid, guarantees honored, and so on. In other respects substantial differences appeared, particularly in family matters and in criminal administration. But we are not concerned here with such differences as how many wives or concubines a man may take, who succeeds to land when the landholder dies, what conduct is deemed to merit the death penalty, and so on. Such considerations are primarily of sociological, political, and economic significance and only secondarily of jurisprudential interest.

We are concerned here with deeper issues, with fundamental divergencies in the theoretical and philosophical concepts of the nature and purposes of the processes of dispute resolution and the maintenance of order in society. It is at this level that the divergencies occur that give rise to the intractable problems met with in attempting to reconcile the two systems.

Examination and analysis of the differences at this level, made in the classic works of Marcel Granet,¹ Jean Escarra,² and Joseph Needham,³ point to the conclusion that the discrepancies between the two systems rest ultimately, not in differing concepts of law, but at a much deeper level in differing concepts of order.

In Western thought, the antithesis of chaos is order, and order is conceived of, both cosmologically and philosophically, as an artificial objective deliberately brought about, managed, and controlled in predetermined forms according to the conscious will of a transcendent power exterior to the flux, by the enforcement of codes of rigid, universal, specific, imperatives constraining conduct.⁴

In Chinese thought and cultural tradition, the antithesis of chaos is harmony, which is thought of simply as a natural characteristic of a state of affairs that arises and persists automatically in a hierarchical universe so long as all the individual parts of that universe, even the smallest, and all persons in it, perform their duties and offices faithfully “according to the internal necessities of their own natures” in whatever station or function in life they find themselves born to or assigned to by superior authority.⁵

The difference between these two contrasting states of order and of harmony is reflected in the means adopted to sustain them. In Western society, where concepts of order prevail, disputes are resolved and breaches of order are corrected by measuring them against rigid, universal codes of imperatives external to the parties, in an adjudication. This adjudication is conducted by an authority equally subject to the codes, independent of each of the parties, and not committed to the interests of either one more than the other, and regardless of the consequences to the existing social and political order and the policies of its rulers.⁶ The outcome turns on the balancing of the rights and duties of each party in relation to the other according to the predetermined codes. This may be designated an “adjudicative” system. Rules of obligation are the heart and center of this system.⁷ It is not inappropriate therefore, following H. L. A. Hart and Lon L. Fuller, to refer to this category alternatively as a “legal” system.

In the society of traditional China, where concepts of harmony prevailed, disputes were resolved and disturbances of harmony corrected (ideally within the immediate group where they arose) by relating them to the personalities, the exigencies, and the surrounding circumstances of the particular case, with a view to the instruction of the parties in the conduct expected of them, and the punishment of those disturbing harmony. This process was carried out by, and according to the values of, an authority superior in rank to both parties (generally from among the leaders of the immediate group), and primarily in the interests of maintaining the existing hierarchical order, the superior position of the authority figures in it, and the cohesion of the group.⁸ The outcome in such a system turns upon the enforcement of duties without rights. This may be designated a “disciplinary” system.⁹ Obedience to superiors in a hierarchy of authority is the heart and center of this system. It does not use the idea of transcendent, rigid, predetermined, universal, and imperative rules. We may adopt the word used by Alice Ehr-Soon Tay in connection with the Chinese system and label this category, alternatively, a “parental” system.¹⁰

It is characteristic of the adjudicative system that political rulers applying it act as the “fountain of justice,” that is to say they concern themselves in their subjects’ quarrels and actively enforce their subjects’ rights according to the transcendent codes of imperatives and the independent adjudicator’s judgments.

It is characteristic of the disciplinary system that the political rulers or supreme hierarchical authorities applying it concern themselves as little as possible with the quarrels of subordinates. It is the very definite duty of the lower ranks and the common people not to quarrel at all, and if they do they must at all costs settle it among themselves, and certainly not on any account trouble their ruler or any government officials with it. If they do, they must expect to be treated harshly—especially the complainant who brought the trouble to the notice of the officials.

Some of the more obvious differences and direct contrasts between the two modes of social control have been exemplified in the table on p. 6.

The practical incidents of adjudicative systems of order are matters of commonplace knowledge and experience in the West. They are the daily concern of every practicing lawyer. The theory and philosophy of adjudicative systems have been for centuries the subject of intensive study and research in the field of jurisprudence. A voluminous body of literature has accumulated.

The Adjudicative (or “Legal”)	The Disciplinary (or “Parental”)
Contemplates: a confrontation between parties on an equal footing, an external fixed code of conduct not prescribed by either, and enforced by an authority equally subject to it, independent of each of the parties, and not committed to the interests of either one more than the other, regardless of the consequences to the existing political order. The proceedings turn on rights.	Contemplates: a confrontation between unequals—a status superior and an inferior—where an alleged insubordination is investigated and punished by one of the parties, i.e., the superior (or a delegate) and primarily in the interests of that party, and of maintaining the existing hierarchical order and the superior’s own authority in it. The proceedings turn on duties.
Rules prescribing conduct are: central, indispensable, and of the essence.	Rules prescribing conduct are: peripheral, dispensable, and, if used at all, for convenience only.
Observable in: the West, the United States, Europe, and in sports.	Observable in: Asia, China, Japan, and in the armed forces.
Appropriate to a society classed as: individualistic and egalitarian, “contract oriented,” “Gesellschaft,”* or “organized.”	Appropriate to a society classed as: group hierarchical, “status oriented,” “Gemeinschaft,”* or “fragmented.”
Links that bind society together are: reciprocal ties of mutual rights and obligations enforced horizontally between equals.	Links that bind society together are: unilateral ties of duty only, enforced vertically downward upon inferiors.
Behavioral guides: please yourself so long as you do not break the rigid rules. Lawyers, courts, and judges tell you what you must do according to universal fixed codes, e.g., acts of Parliament.	Behavioral guides: please your group leaders at whatever cost. Your group leaders will tell you what to do (in traditional China, even what man or woman you must marry), according to what is best for the group in the particular circumstances of each case.
Theory of this category: jurisprudence.	Theory of this category: nowhere systematically formulated.

*Gesellschaft refers to a group of people bound together into an association by artificial and adventitious ties such as laws, the constitution, the rules of a club, or the terms of a business contract. A trading company incorporated under some legislative act is an example. Gemeinschaft! refers to a group of people bound together into a community by natural and enduring ties, such as ties of blood, race, religion, or tradition. The family is an example. For the signification of these indicators in the classification of societal structures in sociology, see Ferdinand Tonnies, Community and Society, trans, and ed. Charles p. Loomis (New York: Harper & Row, 1957), 37–102; Eugene Kamenka, “Gemeinschaft and Gesellschaft,” Political Science (New Zealand) 17, no. 1 (1965): 3–12.

The practical incidents of disciplinary systems of order are also by no means unfamiliar in the West. Every child is born into a disciplinary system—that of the nursery. The earliest lessons that the child learns of the enforcement of social restraints and standards of behavior in society are taught through the medium of disciplinary systems—those of the family and the schoolroom. In adult life many of the incidents qf a modified disciplinary system become well known to those who serve in the armed forces. Relatively strict disciplinary systems for the maintenance of order may be observed in the study of the armies of ancient Rome or of Europe up to about the time of Wellington. Some religious orders in the past have offered instructive examples of the disciplinary mode of social control.¹¹ In England a vestige of disciplinary authority still remains in the universities, but the exercise of it is no longer autonomous. It stems from statute or from contract and it is subject to review by the judges, according to principles of law.¹²

The theory and philosophy of disciplinary systems however has received almost no attention at all at the hands of scholars, either in China or in the West. No comprehensive or systematic formulation of the principles of such systems has yet been attempted. This deficiency will be returned to later in the chapter.

It should be noticed that the two categories specified here—the adjudicative and the disciplinary—are intended as categories of modes of social control and nothing m...