Traditionalising Chinese Law

Abstract

Over the past century, China has undertaken a series of legal reforms in order to establish a “modern” legal system. Despite the efforts of several generations of reformers, many commentators and scholars continue to find the Chinese legal system lacking in what they consider indispensable to a modern legal system or modern rule of law. They have often attributed this unsatisfactory outcome of China’s century-long legal transformation to incommensurability between Chinese tradition and modern values and institutions as represented by those of the industrialized Western countries since the nineteenth century. Underlying this view is a widespread assumption that there exist natural boundaries between “traditional” and “modern” law and between Chinese and Western law. To better understand the history of Chinese legal modernity, this essay argues that it is important to examine the question of how and why the Chinese legal system was labelled as traditional (and hence presumably incompatible with modern or Western law) in the first place. As the first stage of China’s efforts to restructure its legal institutions after Western models (often through Japanese interlocutors), the late Qing legal reform of 1902-11 provides a valuable example of how Chinese law was turned into the traditional, inferior other of both Western and modern law. To understand the relevant processes and implications, we need to explore at least three questions: (1) How was Chinese law Orientalized or self-Orientalized and made incompatible with modern law? (2) How did the Chinese negotiate with the Euroamericentric notions of tradition and modernity? (3) How did the late Qing legal reform project contest or contribute to the traditionalization (chuantong hua) of Chinese law? By reexamining the changing sentiments and debates among the late Qing literati and officials during the last four decades of the Qing including the New Policy period of 1902-1911, this essay shows that the traditionalization of indigenous Chinese legal culture was both a cause and product of the legal reform movement over the past century. It also calls for more attention to the frequently overlooked symbolic epistemic violence that accompanied the Euroamericentric discourses of modern law and civilization and conditioned the Chinese legal reforms in the late nineteenth and early twentieth centuries. I believe that instead of debating whether China has succeeded in “modernizing” its legal system, it would be more fruitful to understand the historical specificities and complexities of Chinese experiences and to problematize the normative assumptions of the dominant discourse of legal modernity. I first trace how the dominant narrative of modern law came to affect late Qing understanding of Chinese and Western law and culture in the 1870s through the 1890s. Next, I re-examine debates in the Qing legal reform of 1902-11 to analyze how a Chinese legal tradition was constructed in contradistinction to Western or modern law. I offer some brief observations in the last section. Besides studying the issues mentioned earlier, this essay illustrates how real or constructed differences between Chinese and Western law were represented, politicized and institutionalized through the discourse of legal reform and modernity in the Sino-foreign contact zones during the late nineteenth and early twentieth centuries.