Traditional Chinese law v. Weberian legal rationality 法理学英文论文--.doc

Traditional Chinese law v. Weberian legal rationalityAbstractA universal theory of law cannot be based on Webers paradigm of the rationality of western law. Abstraction and systematization of law are compared in western law and traditional Chines codes. Chinese law was not substantively irrational but governed by ethical and status distinctions. Chinese legislators worked with humanistic goals. The empiricism of traditional Chinese law is as valid a form of intellectuality as the deductive rationality of Civil Law and the inductive rational-ity of Common Law.Keywords: Universal theory of law, FALV, formal and substantive irrationality, empirical law-finding, Confucian ethics.1. Universal theory of law and western particularitiesSince Jeremy Bentham attempted his general jurisprudence, the efforts for a universal theory of law have been continuing for quite a while.1 The theory is indeed significant especially in this global-ized world of cultural pluralism because such a theory, if completed, would solve the problem of a universal concept of law and construct one fundamental theory applicable to different legal systems in the world. Only in this way could we really get rid of all the barriers to communication and mutual understanding between different legal systems and cultures. Such a theory is not only necessary but even seems possible. Among all the differences between different legal systems we find they share at least one commonality, which is what could be named as law in English or FALV in Chinese and this makes the two terms generally inter-translatable. This basic commonality may be 1. Jeremy Bentham, Of Laws in General (London: Athlone Press, University of London, 1970).30 Max Weber Studies© Max Weber Studies 2010.the basis for a possible universal theory of law. Whatever the local peculiarities of different legal systems on the outside, this should not prevent us seeing the inner nature of law and constructing a universal theory of law. Of all the local particularities, the western ones are likely to be the most dangerous and have caused the worst problems. This is due to the dominant position that western law enjoys in the contemporary world and its overwhelming influence. Chinas western-oriented legal reforms can be an example.2 Chinese people, however, are not the only ones overwhelmed. Very many western theorists of law are prepared to indulge themselves in the current dominance of western law. But they may easily mistake their home particularities as being universal to all laws and cultures. This may well be one reason why the so-called general jurisprudence, which started in the West, has yet to be successful. For the sake of a sound general jurisprudence, the western forefathers need to step away from absolutizing western particularities.3 Max Weber constructed his theory of law, a part of which is his paradigm of legal rationality. With its supposed universality, this paradigm has been used by him and his followers to assess tradi-tional Chinese law and other non-western legal systems.4 Typically, western laws, especially the Continental tradition, are judged to be closest to the ideal type of rationality while traditional Chinese and other non-western laws are placed on the irrational pole of the ideal type. But the question needs to be asked whether the Weberian para-digm has successfully excluded its home particularities and accom-plished the goal of true universality. This paper seeks to investigate these questions through a re-examination of the Weberian paradigm as applied to traditional Chinese law. 2. Zhang Jinfan, The History of Chinese Law (Beijing: China Politics & Law Uni-versity Press, 2002), p. 292. 3. Su Li, The Rule of Law and Its Local Resources (Beijing: China Politics & Law University Press, 1996); William Twining, Globalisation & Legal Theory (London: But-terworths, 2000). 4. Roberto Unger, following Webers suit, first gave his own special definition of legality based on the European case, then claimed that true legality by his defini-tion can only be possible in western Christian Europe but never in the oriental or non-western world, so giving the European-based definition the additional implica-tion of being universal. Roberto Unger, Law in Modern Society: toward a criticism of social theory (New York: Free Press, 1976), p. 66. Qian Traditional Chinese law v. Weberian legal rationality 31© Max Weber Studies 2010.2. Distinctions between western rational naturalism and Chinese empirical humanismWestern legal thought as a whole, with its rationalist traditionwhether Anglo-American or Continental, is today accepted as uniquely the best in human legal history, and this is even accepted in non-western countries like China. The confirmation of whether the western laws are really so unique, or not, could be achieved by comparing the western legal system with that of pre-19th cen-tury China. Contemporary scholars, both eastern and western, take these systems to be essentially different in nature.5 According to the Weberian paradigm, one difference is that the traditional Chinese law is not rational, both formally and substan-tively. The lack of formal rationality of traditional Chinese law is usually observed by westerners from two technical perspectives: the lack of generalizability through abstraction and the lack of systematization.2.1. TechniquesMax Weber takes the main characteristic of formally rational law as the supremacy of general abstract rules.6 It is argued that traditional Chinese laws lacked formalistic discussions of abstract principles.7 Of course the traditional Chinese codes have also arrived at a certain degree of abstraction of social realities. But the degree of abstrac-tion is much lower than that of the western codes. For example, the legal concept of social bonds in traditional Chinese codes, appear in a more concrete way than their equivalents in the western laws. On the other hand, some general and abstract concepts, like legal person, or right, which have a high degree of abstraction and are fundamental to western laws, do not have their equivalents in tradi-tional Chinese laws.8 5. Fan Zhongxin, Coincidences and Differences between Chinese and Western Legal Culture (Beijing: China Law & Politics University Press, 2001); Gao Daoyun, Gao Hongjun and He Weifang (eds.), Recent American Academic Writings on Traditional Chinese Law (Beijing: Tsinghua University Press, 2001). 6. Max Weber on Law in Economy and Society,edited with an introduction by Max Rheinstein and translated by Edward Shils and Max Rheinstein (New York: Simon & Schuster, 1967), p. 354. 7. Robert Marsh, Webers Misunderstanding of Traditional Chinese Law, American Journal of Sociology 106.2 (2000): 281-302. 8. Yu Jiang, Formation and Development of Legal Terminologies in Contem-porary China, Chinese and Western Legal Traditions 01.1 (2001): 24-66.32 Max Weber Studies© Max Weber Studies 2010. With the lack of sufficient abstraction, from the point of view of European lawyers law then, the Chinese system was remarkably rigid and limited in its capacity to deal with novel situations. It cor-rected for its rigidities and limitations with discretion, judicial fiat, or ad hoc additions by the Emperor.9 And this would often mean that the Chinese judge did not have the formalized rules for the inter-pretation of statutesthe rules that would enable him to decide, as in western law, whether or not a particular statute covers the case before him.10 The second point is systemization. The structure of traditional Chinese codes was simple aggregations of some empirical problem, with no internal logical systemization like that of western codes. This is also the result of the lack of reductive and abstract rationality. For example, the Qing Code statutes and sub-statutes were divided up according to their subject matters: fornication, repair of dikes, and so on. Codes in other dynasties were similar.11 The way in which the codes were organized supports Weber very well when he writes: The legally relevant fact situations were dis-tinguished from each other in a thoroughly empirical way in accor-dance with their objective characteristics rather than in accordance with their meanings as disclosed by formal legal logic.12 Webers summary opinion of collections of laws and regulations like the Chinese code (which he does not cite by title) was that they have, in spite of a certain element of systematic classification, little to do with real codification; they are nothing but mechanical arrangements.13 In a word, why traditional China failed to develop categories of law that would produce separate bodies of law: a law of property, of contracts, of torts, of succession, and the like, as had happened in Western law14 is because of the lack of formal rationality in lawmaking. Therefore, although China has had a long and strong tradi-tion of codification, having a code is not the same as having legal 9. An example is the Qing code, in which this rigidity caused the sub-statutes to be added to the code on ad hoc basis. 10. Geoffrey MacCormack, The Spirit of Traditional Chinese Law (Athens: Univer-sity of Georgia Press, 1996), p. 173. 11. Wu Shuchen, Dictionary of Traditional Chinese Legal Culture (Beijing: Peking University Press), p. 100. 12. Max Weber on Law, p. 80. 13. Max Weber on Law, p. 271. 14. William C. Jones, The Great Qing Code (New York: Oxford University Press, 1994), pp. 16, 22. Qian Traditional Chinese law v. Weberian legal rationality 33© Max Weber Studies 2010.rationality. Nor does it eliminate discretion.15 According to Ste-phen Turner, all the institutions of traditional Chinese law, were surrogates for an elaborated “lawyers law”not its equivalent.16 Though the lack of abstraction in traditional Chinese codes may remind people of Webers comments on the empirical and induc-tive approach of Anglo-American case law, essential differences exist between the two. In traditional China, Deductive law-finding of the Continental or Roman kind, was not possible simply because the law was not organized into a hierarchy of categories.17 According to Professor Turner, the reason why empirical justice based on analogy and precedentwhat are conventionally called inductive methods, like those of the Common Lawwas also not possible in China because of the key role of binding precedents.The key term is binding precedents, but it must be understood in a very specific contextthe problem of the creation of law by lawyers and judges to solve the various puzzles that the problem of law-finding throws up. One approach to law-finding, which we might call the justice approach, would be one in which the law that is chosen by the judge to be applied is simply the one which produces the most justice or best serves the interests of the community. One could also imagine this being done without binding precedent. In each new case, the judge would consult the law books and pick the law that produced justice, according to his lights or those of the community but his choice would not bind other judges in the future to judge similarly. This is not how the empirical approach of the common law worked, and there was a crucial consequence of this difference which was utterly central to Webers understanding of comparative law.18The Common Law can do this because it is also rationalized and its distinctiveness from the Continental are in practice matters of degree, while its distinctiveness from traditional Chinese law are matters of substance, due to the over-empirical nature and the insuf-ficiency of rationality in the intellectuality involved in traditional Chinese lawmaking.19 Thus, in terms of the techniques of law-finding, traditional Chinese lawmaking employed much empirical intellectuality, which is not 15. S. Turner, Weber, the Chinese Legal System, and Marshs Critique, Com-parative & Historical Sociology, 14.2 (2002): 6. http:/www2.asanet.org/sectionchs/newsletter/chs02spr.pdf. 16. Turner, Weber, the Chinese Legal System, and Marshs Critique, p. 6. 17. Turner, Weber, the Chinese Legal System, and Marshs Critique, p. 4. 18. Turner, Weber, the Chinese Legal System, and Marshs Critique, p. 5. 19. Turner, Weber, the Chinese Legal System, and Marshs Critique, pp. 4-5.34 Max Weber Studies© Max Weber Studies 2010.as rational as those of the Civil Law, and not even as rational as the empirical and inductive approach adopted by Anglo-American law. Apart from the lack of formal rationality, the substantive irratio-nality of traditional Chinese law is also a widely accepted belief in the West. But this is open to dispute. Max Weber believed that the traditional Chinese legal system was substantively irrational. Two of the major reasons he gave for this are as the following: First, Chinese magistrates and other law-enforcement officials made judicial decisions from case to case, in an unpredictable and arbitrary way, without significant reference to written law codes. This is exactly what Weber described as Khadi justice,20 the ideal-type of substantively irrational law, where decisions are made on an ad hoc basis, or as Weber put it, through informal judgments ren-dered in terms of concrete ethical or other practical valuations.21 Secondly, Weber regarded China as representing the purest type of patrimonial bureaucracy;22 that is, having ideal-type elements of both patrimonial and bureaucratic regimes. And the patrimonial offices were staffed not by technically qualified legal experts, but by humanistically educated generalists. The patrimonial ruler and his administrative law-enforcement officials are alike, characterized by the fact that their personal arbitrariness is limited only by sacred tradition.23 Therefore, traditional Chinese law lacked one of the nec-essary conditions of western legal order: the separate status group of lawyersthe specially trained legal expert, which is an essential condition for the growth of legal realism. For these reasons, and some others as well, Chinese law, according to Weber, was closest to his ideal-type of substantively irrational law. Robert Marsh does not seem to agree with Weber. He argues that, due to the lack of knowledge in the West about China, Weber might be wrong in classifying traditional Chinese law into the substantive irrat