Du Junqiang, a researcher from Xi’an Jiaotong University, School of Law, held a presentation on “Judicial Reasoning in Traditional China and its Impact on Modern China” at the China Law Center on April 20, 2017. Kimmo Nuotio, Professor of Criminal Law, and Dean of the University of Helsinki Faculty of Law, opened the event. In his presentation, Dr Du introduced the two competing schools of thought in China, Legalism and Confucianism, and demonstrated how the two opposing perceptions of society and legal practice have been combined in Chinese law at different periods of time, and how they have influenced legal practices.
For over a millennium, until the end of the last dynasty in 1911, Confucianism was the main guiding philosophy in China and strongly influenced legal practices in the empire. Opposed to the Western practices of law, where the criminal is viewed as an individual independent of his or her relationship to the victim, punishments in traditional China considered context and morality in criminal judgements. Citizens were expected to act with morality, based their social role and place in the family hierarchy. Confucian principles were embedded in former Legalist practices through Chun-qiu-jue-yu, a new style of judicial reasoning combining the two, and gradually became a part of the legal code. Judges were expected to quote the articles when giving out punishments under the condition of Confucianized Code. The criminal was viewed not as an individual, but in relation to the victim. Punishment for hurting one’s blood relatives, for instance, would be much more severe – punishable with a death sentence – than for hurting a stranger.
However, due to severe criticism towards traditional Chinese values by modern legal reform at the end of the last dynasty and the New Culture Movement in 1919, legal practices became dominated by individualism and to a certain extent Legalism. Confucius virtues of love and social relationships were banished. As opposed to Confucianism, individualism and Legalism do not place any weight on social relationships, but victims are punished based on the committed crime. Yet, even though criticism for Confucian practices has dominated for nearly a century, elements of traditional culture can still be seen in argumentation for some cases. Ordinary people, some scholars and even some judges today use traditional Confucian legal culture and morality as support for their arguments and judgements. The social role in the family hierarchy is still embedded in the Chinese mindset. Therefore, China’s current judicial reform of judicial reasoning must also consider the legal culture of the old legal system.
Du Junqiang is a lecturer at the Xi’an Jiaotong University Law School and a Visiting Researcher at the University of Helsinki, Faculty of Law. He holds a Master’s Degree in Legal Theory from Zhejiang University and is a PhD of Legal History from East China University of Politics and Law.
Author: Cristina D. Juola