CLI - China

Question 1

What’s Li? What is at stake?

Answer 1

Proper observance of certain rites (“Li” = good form) maintains the proper order of the universe and can facilitate a return to virtue amid a time of chaos

Question 2

How should you lead people a2 Confucius?

Answer 2

“Lead the people by laws and regulate them by penalties, and the people will try to keep out of jail, but will have no sense of shame. Lead the people by virtue and restrain them by the rules of decorum, and the people will have a sense of shame. and moreover become good”

Question 3

What did Confucius think about human nature?

Answer 3

Confucius teachings were not just for the upper class, he believed that all men could become gentlemen (chun-tzu) through learning

Not punishment oriented - people can become good

Question 4

How are people defined in Confucian society?

Answer 4

HIERARCHY

• People are defined by the social relationships they are in
  
  • Each relationship comes with rules: reciprocal duties
• All relationships are hierarchical except friend-friend
• “let the prince be the prince, the minister be minister, the father father and son son…[otherwise the country will be ruined]

Question 5

Who should lead society a2 Confucius? How should they govern?

Answer 5

Kings were to be sages; highest calling is to be a statesman

“To govern is to set things right. If you begin by setting yourself right, who will dare to deviate from the right?”

Question 6

What are the five crucial relationships in Confucianism?

Answer 6

• (1) Emperor and subject
• (2) Friend and friend
• (3) Father and son
• (4) Husband and wife
• (5) Elder brother and younger brother

Question 7

What was the first written law in China?

Answer 7

Originally, written law was primarily penal and codified ethical norms rarely invoked unless less-punitive measures had failed

Question 8

What was penal law called?

Answer 8

Hsing (literally, “knife”) became used as a term for “penal law”

Question 9

What, besides law, governed Confucian society?

Answer 9

• Violations of social order constituted violations of cosmic order because spheres of man and nature were inextricably interwoven
• Generally informal customs regulated society
  
  • Proverb: “win your lawsuit, lose all your money”

Question 10

Who brought cases in Chinese society?

Answer 10

• Individuals did not lodge complaints against one another—state decided to prosecute

Question 11

Who administrated law in China?

Answer 11

• Administration of law done by hsien (township or local) magistrate as one of their functions
  
  • No formal legal training; took roles of prosecutor, judge, detective
  • Legal secretary [BJP1] did most of the legal work and had specialized knowledge

[BJP1]I think there might be an analog to the lay judges in muslim society and the scholars who made the law and were sometimes gone to for advice

Question 12

What concept prescribed behaviors in ancient China?

Answer 12

• Confucians – believed Li and Li alone should govern society
  
  • Distrustful of written law because “knowing in advance what the law is permits people the opportunity to circumvent it and will rest on their sophistical arguments on the letter rather than the spirit”
  • Feared that laws would crowd out social norms
• Li denotes the correct performance of all sorts of rituals and social relationships
  
  • Li reified hierarchical differences by prescribing different behaviors on account of class, age, rank in family, etc.

Question 13

Why were people suspicious of law in ancient China?

Answer 13

Confucians – believed Li and Li alone should govern society

Distrustful of written law because “knowing in advance what the law is permits people the opportunity to circumvent it and will rest on their sophistical arguments on the letter rather than the spirit”

Feared that laws would crowd out social norms

Question 14

What was positive law called in ancient China?

Answer 14

• Fa is the generic term for positive written law as an abstraction
  
  • Initially law was greeted was overt hostility, believing it violated cosmic order
    
    • Feudal Chou dynasty promulgated “books of punishment” in 536 BC

Question 15

Who were the legalists in ancient China and what was their goal?

Answer 15

• Fa Chia – Legalist school of thought
  
  • Goal: create a political and military apparatus powerful enough to suppress feudal privilege at home and expand the state’s territories

Question 16

Why did legalists think law was necessary in ancient China?

Answer 16

• Saw law was essential for effectively controlling the growing populations under their jurisdiction to promote peace, unity, and a single morality
  
  • Pessimistic view on human nature and the efficacy of custom alone
  • Harsh punishments mean that you will rarely need to punish
• Legalists won out in the end and unified China

Question 17

How did confucian and legalist thought differ?

Answer 17

• Fa = rules; Li = standards
• Legalists had little faith in the future adjudicators; Confucians sanctified sage-kings
• Legalists wanted uniform application of the law; Confucians wanted differentiated punishments based on social status
• If a father commits a crime: Confucians don’t think the son should tattle v.v. legalists
• Both Legalists and Confucians saw law overwhelmingly punitive in nature
• Neither idealized the “rule of law”

Question 18

How was early Chinese law Confucian?

Answer 18

• Status-based immunity for judges
  
  • Cabbage case – must take Yang’s titles in order to punish him
• Punishing people for failing to observe mourning period
• Death penalty only administered during seasons of death

Question 19

What was the class system hierarchy in imperial China?

Answer 19

• Magistrates at top – passed rigorous series of tests
• Farmers – need people to generate food
• Artisans – make implements and tools of war
• Merchants – lowest – just move stuff around without generating anything (same valuation in contemporary Europe)

Question 20

What class mobility existed in imperial China?

Answer 20

• Some mobility though
  
  • Exams  ability to enter bureaucracy
  • In reality, only literate were able to advance in society

Question 21

who in the legal profession earned suspicion in imperial china?

Answer 21

• Litigation tricksters = people who “tried to trick” people into bringing claims against bureaucracy and other individuals
  
  • People who used legal knowledge were taken with suspicion

Question 22

What did magistrates do in imperial china?

Answer 22

• Rule of avoidance – sent far from home – want to make sure they are not embedded in local networks
• Governed a ¼ million people – very thin/efficient administration
• Elaborate bureaucratic checks on their discretion

Question 23

What were the internal checks in the imperial Chinese legal system?

Answer 23

• Censorate – special institution tasked with watching other institutions in the bureaucracy
  
  • When appeals on district, prefectural, or provincial level didn’t work out

Question 24

What was the duty of remonstrance?

Answer 24

• Duty of remonstrance: when emperor was doing something wrong they were supposed to tell him – see the effect of the petitions on Yang’s behalf

Question 25

What happened in the little Cabbage story?

Answer 25

Little Cabbage – Of Arsenic and Old Laws: Looking Anew at Criminal Justice in Late Imperial China, William P. Alford,

• Basic facts: man falls ill, dies, poorly done autopsy suggests poison, wife had improper relationship with former landlord (Yang) so she is suspected and is tortured into confessing that she poisoned her husband at the behest of her landlord

Lots of covering up what was happening at local level with repeat

Question 26

What did the little cabbage story illustrate about imperial Chinese law?

Answer 26

• Demonstrates the overlapping and iterative process of appeals in imperial China
  
  • Punishments at the end were enforced to reassert the procedural legitimacy of the bureaucratic process
• External checks of the system evident from the effect that the Yang’s memorials had at bringing the emperor’s attention to the issue
  
  • Fire alarms and dog whistles: public responds to malfeasance by the agent
  • Similar to the newspaper reporting the injustice in The Case of Comrade Kuo

Question 27

what did the five auspicious clouds tale show about imperial chinese law?

Answer 27

Five Auspicious Clouds, from Judge Dee At Work, Robert van Gulik

• Wife dies – at first it seems like she hung herself but neck suggests otherwise
• Judge discovers she had relationship with painter – disapproves
  
  • Fusion of law and morality – “appearance of impropriety” suffices for legal sanction
• Does justice outside the parameters of law
  
  • Refrains from pressing charges against shipowner for attempting to seduce married woman IF shipowner hires painter to paint each of his ships for a silver apiece and

Question 28

What was the theory of international relations in imperial China?

Answer 28

• Tributary system – theory of international relations in China
  
  • Delegations to China, gifts to emperor
  • Okay with Korea etc. existing – as long as they reaffirmed suzerainty

Question 29

what were some factors leading to communism?

Answer 29

• Loads of history: drugs, trade, and invasion culminate in communism

Question 30

New Cadre v. Specialists

Answer 30

• New Cadre v. Specialists
  
  • New Cadre – want more simplistic system that everyone could understand, would rather not report to court, community policing, self-reporting, distrustful of expertise, drawing on basic Marxist ideas about what society should look like
    
    • Marxist – driving force in class struggle – capital v. labor – everything that existed before melts into air
    • Economic conflict = root of all problems. How to distribute surplus?
    • Important thing is to empower proletariat to achieve communism
    • Distrusted the theory of the “rule of law” like their Confucian forebearers
  • Specialists – old guard nationalists who preferred a more comprehensive but complex body of law

Question 31

What was Comrade Kuo convicted for?

Answer 31

• Kuo was conviced of “intentional sabotage” even tho it was more likely just ineptitude
  
  • Partially convicted to “accommodate” the wishes of the factory
  • Spectators grumbled about proceedings, which reached the extrajudicial govn. who investigated and exonerated Kuo

Question 32

What did the media criticize about his conviction?

Answer 32

• “Kuo publicly tried without reason”
  
  • The violations he was sentenced for were ordinary that any laborer could have been sentenced for according to factory workers
• “The evil results of handling a case in a subjective manner” – Worker’s daily
  
  • Case was evil because of its subjectivism and bureaucratism
    
    • Bureaucratism = gray area that is not quite immoral or criminal = official carelessness and unresponsiveness to needs of masses
    • Factory did not care about Kuo’s dire family and financial situation
    • All could have been avoided by technical training and assistance
      
      • Too quick to punish

Question 33

How did the Court respond to the newspaper’s criticisms of Comrade Kuo’s conviction?

Answer 33

• Li’s self-criticism (VP of district Court)
  
  • Accepted that the newspaper’s characterizations were entirely correct
  • Attributed administrative failings to capitalistic tendencies stemming from pre-liberation institutional memory
    
    • Judge Li is a cadre (newcomer to judiciary after liberation) w/ little legal training, so was unsure of the court’s role in this situation
    • Judge Li believed that all should assist production effort even the courts

Question 34

What was the outcome of the Comrade Kuo incident?

Answer 34

• Wang needs to make a self-criticism (Li, J. already did so)
• Leaders of factory should carry out discussions in order to learn lessons and carry out the progressive workers’ campaign
• Li must be fired and self-criticize for altering the record
• Kuo should self-criticize to recognize his error and receive lost salary
• Similar to the Little Cabbage case in that procedural legitimacy was upheld by punishing all administrative officials who were culpable

Question 35

What does the story of Comrade Kuo illustrate about Chinese law? Which informal mechanisms rectify official mistakes?

Answer 35

• This case shows the informal mechanisms that rectify official mistakes
• Emphasis on reform not punishment (self-criticism)
  
  • Contrary to the punitive Imperial Chinese approach
• Duty to grumble
  
  • Grumbling like here was not unusual
  • Every person is obligated to monitor the actions of officials
  • Need not be in person – can write in to the newspaper
• Potential issue with informal appeals
  
  • One incident can cause multiple institutional actors to get involved to rectify the situation – muddling the affair w/ redundant efforts
    *

Question 36

How has Chinese law changed reccently and why?

Answer 36

• China has become more authoritarian in recent years
  
  • But it is doing so by harnessing the law rather than circumventing it
  • Necessary because of the size of the country:
    
    • Either can be regulated through decentralized administration or legality
    • Because of power centralization, China chose legality

Question 37

What are four ways legalism has increased in China in reccent years?

Answer 37

o (1) Empowering courts against other state and Party entities

§ Lowered external political interference with administrative litigation

· 50% increase in rate of plaintiff victory

o (2) Insisting on legal professionalism

o (3) Bringing political powers that were formerly the exclusive possession of the Party under legal authorization and regulation

§ E.g., transfer of anti-corruption investigation powers from the Party to a constitutionally empowered, legally regulated state “supervisory” institution

o (4) Greater importance of constitution in politics and belief in its legitimacy

§ Historically: Constitution played a small role – mostly just codified statutes that were already on the books for long before

§ Xi Jinping has valorized it more than his predecessor

· Made a Constitution Day

§ Public debate emerged over constitutionalism, even Party papers endorsed qualified moderate constitutionalism

Question 38

How are Chinese courts more powerful reccently than before?

Answer 38

o Growing financial independence from local governments

o Expanding jurisdiction over administrative disputes

o Creation of circuit courts

o Greater statutory interpretation authority

o Substantially stronger enforcement powers

Question 39

What prompted increase in legalism in China?

Answer 39

• Enhanced sociopolitical legitimacy of the law
  
  • “Demand side”
  • Seen as preferable to traditional bureaucratic corruption
  • Popular legitimation of legal institutions increases their prestige and use and tends to be self-reinforcing.
• Centralization of power, requiring strict rules and procedures
  
  • “Supply side” governance and economic benefits
  • Provides “credible commitments” decreasing transaction costs in the economic sphere
  • Solves principal-agent problems in administration

Question 40

What does studying modern China show about the role of law?

Answer 40

• Law in not merely an instrument to check authoritative regimes
• Law can be used to enabled dictatorships
• In long term tho, sociopolitical entrenchment of legal institutions may constrain the exercise of power
• Crucially, technical letter of law is being entrenches not the rule of law which regulates the exercise of power towards constitutionalism