Abstract
This article is a sequel to a talk delivered at a conference of US and Canadian historians of China. It proceeds from concerns about a sea change in the attitude toward Chinese history, one related to the current deterioration of the relationship between China and the West. Its most manifest expression was the idea that China had only discipline and order, but no genuine law, to provide the basis of a rule of law. It is as if a true legal system must stem from the rule of law as understood in democracies. Contrary to this reductionist vision of law, the article shows that, throughout world history, law was an instrument of domination, and became associated with democratic ideals very late, and not without ambiguity or prevarication. Therefore, a legal system must be assessed not according to recent democratic prejudices of what law should be, but according to its own terms, and its own historical development. This is where Montesquieu’s paradoxical vision of the Chinese empire is enlightening. According to his Spirit of the Law (1748), China was a “despotism,” but in other more confidential writings, Montesquieu mitigated this judgment: “Despotism, certainly, but the best of all,” once its balanced institution and sophisticated legal system are taken into consideration. In other words, the form of the government should not lead one to prejudge the quality if its legal systems. In this spirit, the article retraces the evolution of this legal system, along three main periods. The antique “Warrior Empire” of the Qin and Han dynasties laid the foundation by a positivistic, itemized, rationally task-oriented, concept of Law as a tool for commanding and controlling public agents. The crisis of this first set-up caused by the proliferation of regulations was gradually overcome thanks to the general codification under the “Bureaucratic Empire,” which came to maturity between the Tang and Song dynasties. The profound disruption of Chinese law and institutions by the Yuan dynasty prepared the way for the last phase, which was the edification of a complete and overall legal system by the “Autocratic Empire” of the Ming and Qing dynasties. The Chinese empire was then in advance on the world to implement a genuine legal system, founded on a set of codified laws and regulations, which were publicized towards commoners, accompanied by great array of explicative handbooks. Thus, autocratic empire laid the foundation of the Chinese modern state, with at its core the modern legal system, which was combined with Western legislations during the reform movement of the Late Qing and early Republic. Attempts at assessing the present legal system of China should start by taking into account this great legacy and its modern transformation, instead of imposing on it an extraneous conception of law.
Keywords
despotism; monarchy, autocracy, absolutism, legal system, codification, principle of legality (of crimes and punishments), legal education, legal comparatism
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