Of the many and varied institutions which make up a particular culture or society, enabling it to survive and prosper, and judgement as to relative importance or significance is perhaps impossible. Yet it is difficult to deny that law, defined in its broadest sense, with its accompanying legal institutions, normally plays a significant role. To the historian dealing with ancient history, the Code of Hammurabi, the Russkais Pravda of Yaroslavi the Wise, the Laws of Manu, and the Acts of the Saxon Kings are documents of immense importance. They portray in clear terms property relationships, behavior patterns, and class structure. In addition, however, they represent value judgements. Each prohibition, each effort to provide restitution for injury, each rule governing the conduct of the individual or the group, rests implicitly on a positive “ought”. Each era, historically speaking, makes ethical judgements which are enshrined in law.
The historical entity which we label the “Chinese civilization” is no exception. As one uniquely qualified observer has noted, “A county could not possibly have lasted so long without sound legal principles as her foundation and without having continually drunk from the life-giving fountain of justice to perpetually renovate herself.”1 It cannot be emphasized too strongly that the Chinese legal system not only was the third earliest historically, preceded so far as is known only by the Egyptian and that of Mesopotamia, but also had the unique distinction of being the only ancient system that survived continuously to the 20th century.2 In this study an attempt has been made to paint a broad picture of the role of law in Chinese society down through the centuries of Chinese recorded history. The similarities and contracts particularly the latter, between the structure of function of law and legal institutions in Western civilizations and those in China are investigated. The role of the almost indefinable “li” and its never-ending struggle with the forces of positive law are surveyed. Beginning with the development of law in ancient and feudal China, and the, historically speaking, early conflict between the Confucianists, exponents of the “li”, and the Legalists, advocates of positive law, the study proceeds to an historical survey of the sources of positive law, from the classic texts through the unbroken line of codes. An attempt is made to analyze the apparent lack of a clear distinction in Chinese laq between the civil and the criminal aspects, seemingly so “foreign” to Western thinking. FInally, the Westernization of Chinese law in 20th century is described, concluding with some tentative observations of the developing structure of law in Communist China and the difficulties faced by a society attempting to reconcile its role as historical heir to the “li” - “law” dichotomy and political heir to Marxist legal theories.
| Identifer | oai:union.ndltd.org:pacific.edu/oai:scholarlycommons.pacific.edu:uop_etds-1356 |
| Date | 01 January 1958 |
| Creators | Norberg, Willard Perry |
| Publisher | Scholarly Commons |
| Source Sets | University of the Pacific |
| Detected Language | English |
| Type | text |
| Format | application/pdf |
| Source | University of the Pacific Theses and Dissertations |
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