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Traditional Chinese law and its contribution to understanding the contemporary Chinese lawIntroduction | |
In order to develop a proper understanding on to what level the ancient or traditional law is significant to understanding and comprehending contemporary Chinese law, it is imperative to acknowledge the cultural, political, social and historical facets of the Chinese legal tradition. Chinese present legal system reveals a number of influences including the Chinese culture and deeply rooted philosophies of classical China such as Confucianism and legalism. Nonetheless, one concept that has attained a great level consensus is the idea of Confucianism that has contributed largely to the development and understanding of the modern China law. For instance, some historians and legal analyst explains that the advancement of traditional Chinese legal system is defined by the confucianization of law, while some argues that China has Confucian foundation legal account. In fact, this concept played a significant role in developing the ancient Chinese legal system, the legal success of Tang and numerous dynasties that later contributed highly to the development of the contemporary laws. Furthermore, even though there is little explicit evidence linking China’s imperial and modern laws, the impacts of Confucian philosophy and ethos is readily obvious in the modified and transformed Chinese legal culture. An Introduction to Confucianism
Confucius (Kong Fuzi) who lectured at an era of pronounced social disorder during the Seventh Century B.C., on the foundation of the traditional approaches and principles, particularly as prescribed by the ancient Zhou (Chou) rulers or as documented in their deeds (3.14), convention li, which implies numerous effects, but specifically, denial of the eternal and operative normativity of official and sanction. Confucius essentially champions social and political order via a procedure of persuasion and instance, which can be got from the concept of Confucian Viewpoint that defines the human treatment of the emperor. For example, when it postulates that the moral strength of a gentleman is likened to wind, while that of a common man is compared to grass. According to Confucius, human nature is kind, therefore, he prefers personal-cultivation and education as the way by which people should be directed. In essence, he underpins that people should be guided by virtue is emphasized for benefits, values and compromise so as to prevent any kind of friction and form a perfect universe of peace and harmony in which the proper coexistence of human and nature can be noted. Confucius’ approaches towards law can be easily be got from Analects as can be supported by the phrase when he says “ I could adjudge lawsuits just like any other person. However, I would love to make lawsuits needless”. This is because, the people ought to be motivated positively by li, conduct themselves in a correct way as punishment is nothing but a source of making people shameless. Confucius similarly encourages the human relationship between the leader and the subjects and also between families. On the contrary, the legalists maintains that human beings can coexist in a society harmoniously only when the offenses are handle by prompt punishments and underpins state powers and control instead of championing morality. The law which at times is called (fa), as their entity is discouragement, enforces severe penalty for failure to adhere with the responsibilities levied by the government and the moral concerns are rigorously exempted in the conduct of the state. Confucianism and legalism had co-occurred, with uneven effect and conflicts in the entire China history. After being implemented as a national ideology, the Confucians, on one side recognized the superiority of li to fa, which subsequently, as a result of being Confucianized, played a subservient role to...
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