Abstract
When the Civil and Criminal Codes were stabilized during the period of the Nationalist Government (Guomin zhengfu 國民政府, 1925-1948), the official mainstream discourse held that China’s national spirit at the time was that of the Kingly Way and was society-centered; it thus suited the society-centered Civil and Criminal Codes. However, after a period of implementation, the problem of law and society not fitting each other surfaced and received increasing attention. The relevant discussions in the writings of Wang Po-chi 王伯琦 (1909-1961) and other legal scholars provide a glimpse into the views of the jurisprudential circle on this issue in the 1950s. These views can be roughly divided into the following three types: reforming popular conceptions to conform to modern laws; restoring traditional laws that were suitable for modern use; and judicial socialization. Among these scholars, Chen Ku-yuan 陳顧遠 (1895-1981) argued that traditional Chinese law was special obligation-centered, and thus was close to being society-centered. Hsu Dau-lin 徐道鄰 (1906-1973) believed that the law of the Tang Dynasty was centered on the Confucian code of ethics, and valued the relationships between people, so it was in line with the Western society-centered legislation of that time; Tao Hsi-sheng 陶希聖 (1899-1988) was concerned that the civil law at that time was too far from China’s actual social system and organization, and proposed judicial socialization as a remedy. Wang Po-chi believed that traditional Chinese law was obligation-centered, and the social system and organization at that time were collectivist; these were inconsistent with the society-centered code. He recommended that “the Enlightenment of Law” (fajiao 法教) and the concept of independent personhood in the “Man of Virtue” (junzi 君子) could be used to establish a popular concept of the individual and lead the people to the modern western concept of society, in order to better fit the society-centered legislation. Although their ideas differed, in the eyes of these legal elites who had received a modern legal education, the influence of tradition on the society and culture of the time was still unavoidable, even as they pursued the modernization of law. In these opinions, “the Controversy between Naturalism and Rationalism” and “the Controversy between Particularism and Universalism” that had existed since the late Qing Dynasty revision of the law are still present.
Keywords
law and society, 1950s, society-centered legislation, Wang Po-chi, Chen Ku-yuan, Hsu Dau-lin, Tao Hsi-sheng
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