Talk:Chinese law

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This isn't true[edit]

This isn't true. Rewriting

This basic legal philosophy remained in effect for most of the imperial era. The criminal code was not comprehensive and often not written down, which left magistrates great flexibility during trials. The accused had no rights and relied on the mercy of the court; defendants were tortured to obtain confessions and often served long jail terms while awaiting trial. A court appearance, at minimum, resulted in loss of face, and the people were reluctant and afraid to use the courts. Rulers did little to make the courts more appealing, for if they stressed rule by law, they weakened their own moral influence.

Removed

You can say this about any society.....

Law in the People's Republic of China (Mainland China) contemplates both a formal system of social control by the legal system and a complementary system of informal social control. This is derived both from traditional principles of Confucianism and from socialist theory.

Moved from Rule of law[edit]

Rule of law has become an important part of political discourse in the People's Republic of China since the 1990s, and there is the normative principle that all state and party organizations are subject to the Constitution of the People's Republic of China, and all the laws adopted are subject to it.

Although the law may prevent the government from taking one particular action or another, it creates an efficient administrative system and decreases fear and resentment of the state, thereby enhancing the power of the state. In addition, Chinese conceptions of the rule of law tend to stress that the government is not a single monolithic body, and the rule of law prevents differences of opinion within the government from spinning out of control.

In a Chinese context, the law is the expression of the people and so the law derives its power from popular will, which manifested itself in the communist revolution. It is also seen as a means to make China a rich and powerful nation by preventing social chaos (such as was found in the Cultural Revolution or the cult of personality under Mao Zedong) and increasing central control over local officials. Curiously, both supporters and opponents of the government agree that the goal and effect of the emphasis on rule of law in China is to increase rather than reduce the power of the Communist Party of China.

It needs some work before being added to this article. Mark ¹ 04:59, 17 Feb 2005 (UTC)

POV?[edit]

It is speculated that it will take 50 years for China's legal system to catch up with those in the West.

POV? --Dpr 04:15, 15 October 2005 (UTC)[reply]

I've removed that sentence. In the absence of a reference, and with no additional information on the criteria for "catching up with the West", it's not really that meaningful. Yeu Ninje 08:32, 4 March 2006 (UTC)[reply]

Fa and 法[edit]

Does anyone know how to untangle this section?

The standard word for law in classical Chinese was fa (法). The Chinese character for fa denotes a meaning of "fair", "straight" and "just", derived from its water radical. It also carries the sense of "standard, measurement, and model".[1] Derk Bodde and Clarence Morris held that fa has its origin in yi (義: "social rightness").[2]

When it is stated that 'It also carries the sense of "standard, measurement, and model"', is this referring to the word fa or the character 法? Contrary to what people may think, the meaning of a word and the etymology of its character are not the same thing. The character 法 was created to write the word fa (or whatever it was pronounced at the time), not the other way round. What is most relevant is the usage and range of meaning of the word fa. In fact, fa is also found in words to do with Daoist magic!

Bathrobe 14:08, 28 March 2006 (UTC)[reply]

When mention is made of fa, I think it's pretty clear that it's referring to the character (法). Of course fa is the pronounciation of any number of characters in Chinese, but it's taken as shorthand for 法 because the article can't keep repeating the Chinese character. The original meaning of fa (the character) is something which approximates the Western concept of "law" (in the sense of 法令: "laws and decrees"; 法律: "law, statute"). Other meanings also found in Classical Chinese (like 方法: "method"; 效法: "follow the example of") are derived from that original meaning. I suspect the Daoist terms you mention would fall within this second category. Yeu Ninje 14:25, 28 March 2006 (UTC)[reply]

There seems to be a mixing of concepts here. In Chinese, 法 may be seen as a unity of pronunciation (fǎ), meaning ('law'), and writing (the logograph 法, sandianshui + 去). But English would normally try to make clear the conceptual difference between these, both because there is an established tradition of analysing these concepts separately, and for the more practical reason that English simply doesn't use the logograph 法. The above paragraph actually uses the word fa in at least two senses, possibly three:

The word or morpheme fǎ. This word/morpheme means 'law', but has other meanings and usages, such as its usage in fǎ in fǎshī (法师) and fǎshù (法术).
The character 法 that is used to write the word fǎ.
A third possible sense is 'the meaning/usage/concept of the word fǎ' considered in isolation.

I would argue that this should be made clear in the English. In the first part of the paragraph, the word fǎ and the character 法 are being conflated. Yet in the second part (namely, 'Bodde and Clarence Morris held that fa has its origin in yi (義: "social rightness")'), it is clear that Bodde and Clarence are not claiming that the character 法 has its origin in the character 義. They are talking only about the concept or meaning carried by the word fǎ.

I think this paragraph really needs to be rewritten in these terms: (1) The word fa has such and such a meaning. (2) The character that the Chinese use to write it represents such and such a concept (e.g., water radical represents "fair", "straight" and "just" -- although I had never realised that this was one of the meanings of the water radical!).

Bathrobe 15:07, 28 March 2006 (UTC)[reply]

I don't think that fǎ and 法 can be separated. As far as is relevant for this article, they are one and the same. Fǎ and 法 have the same meaning, and the meaning of the concept pronounced fǎ cannot be separated from the character because both are representations of the same concept - one with voice and one with writing. Yeu Ninje 09:32, 29 March 2006 (UTC)[reply]

Well, if you don't separate them, you end up making the claim that the character 法 is derived from the character 義 :). If you feel incapable of making the distinction, I am quite happy to make it for you.

I am aware that there is a tradition in Chinese of saying that xxx word has such-and-such a meaning because the character has such-and-such a radical, but linguistically speaking, the radical is irrelevant to the meaning of the word.

Bathrobe 09:45, 29 March 2006 (UTC)[reply]

I agree with your point about fa and yi, so I've altered the sentence to "Derk Bodde and Clarence Morris held that the concept of fa had an association with yi (義: "social rightness")." I think this is pretty specific and avoids any confusion.

I really can't agree with your argument that the radical is irrelevant to the meaning of the word. Although the radical doesn't always reflect the meaning of the word, it's important here because the radical reflects the origins and early understanding of the word. This foundation is then reflected in the Chinese legal tradition. Yeu Ninje 09:55, 29 March 2006 (UTC)[reply]

Re: "the radical reflects the origins and early understanding of the word. This foundation is then reflected in the Chinese legal tradition." I will agree that the radical reflects the early understanding of the word by literate Chinese, and this may even be reflected in the Chinese legal tradition (in that people writing about it may share views similar to those that you have expressed). However, I disagree that it reflects the origin of the word. I humbly submit that the word (however it was pronounced) predates the character by possibly thousands of years. The word came first; characters came later. There was no 'water' in the word fǎ until some scribe sat down and thought "how can we write this?".

Bathrobe 10:08, 29 March 2006 (UTC)[reply]

It's possible that there was a concept pronounced fa before the character emerged, but honestly I don't think it's all that relevant in this article. I put in the discussion of fa and 法 simply to show where it was equivalent or different to the Western concept of "law". I don't see how this would be assisted by differentiating between the word and the character. Plus we know next to nothing about the concept of fa before it was written as a character. Yeu Ninje 10:23, 31 March 2006 (UTC)[reply]

Since the article uses the wording "The Chinese character for fa", I don't see any great problem as it stands and I don't intend to pursue this matter further, especially as the most confusing part has been cleaned up.

As for whether a discussion of law in China would be assisted by a differentiation between the word and the character, that is a rather utilitarian approach. In principle, word etymologies and character etymologies should always be treated as separate things, and to fail to do so lacks rigour. There is no doubt the character 法 may cast light on how the word fa was apprehended by people a very long time ago when they decided to write it down, but the meaning of fa as a word must be arrived at through a study of actual use (including its usage in meanings such as "method" or "magic"). To take a different example, the character for jia, 家, has a pig under a roof. The construction of this character may tell us something interesting about the ancient Chinese lifestyle/economy, but it would be ridiculous to infer anything about the predilections of Confucianists from the use of this character in the word 儒家! Jia must be understood in terms of its usage as a word (or morpheme), not the particular symbol that was chosen to represent it.

Anyway, from the paragraph as it stands, it is clear enough that the meaning of the word fa is being explained from the point of view of character etymology. It is perfectly acceptable as long as this is made clear.

Bathrobe 11:32, 31 March 2006 (UTC)[reply]

Qin Yanhong[edit]

Hey guys I got a new idea for an article on this subject. I think it should be about Qin YAnhong. He is a perfect example of how poor the Chinese law system is. — Preceding unsigned comment added by 141.157.199.97 (talk)

See http://www.nytimes.com/2005/09/21/international/asia/21confess.html?_r=1&oref=slogin from the New York Times for more information on this man who confessed to murder while under police maltreatment and later was released from death row.--24.211.242.80 (talk) 17:40, 1 March 2008 (UTC)[reply]

me[edit]

I took off the thing saying "quanli" also means "power," because it's misleading. The "li" for power and the "li" for right are different. —Preceding unsigned comment added by 208.27.111.130 (talk) 19:12, 9 October 2007 (UTC)[reply]

Removed last paragraph of "People's Republic of China" section[edit]

The text of the paragraph was:

The future development of Chinese law will rely on the Chinese government accepting international legal standards and norms when drafting legislation. Only a legislative regime that is non-protectionist, transparent and non-discriminatory will allow China to continue to develop economically.

This is a controversial statement, not a factual one. Steve.Murgaski (talk) 06:07, 10 June 2008 (UTC)[reply]

small issue[edit]

This page mentions that torture was used on criminals but doesn't explicitly state that in the PRC or Taiwan torture is now prohibited. May seem small but helps clarify the differences. Could be mentioned on the pages for the 2 different law systems but isn't on the PRC page. 4.249.3.175 (talk) 13:55, 27 August 2009 (UTC)[reply]

Removed unclear claim[edit]

I removed the below claim because 1.) it was not grammatical and was hard to understand, and 2.) it seems to be an opinion rather than a fact. -- Beland (talk) 23:17, 4 June 2012 (UTC)[reply]

Removed text[edit]

While fǎzhì supposed to be "rule of law", there is a widely misconceiving that mixed "rule by law" with fǎzhì.^[1]

^ 李步云：二十年改一字从刀“制”到水“治” "关于法制与法治的区别，我将它概括为三条：首先，法制是法律制度的简称，法律制度是相对于一个国家的经济、政治、文化、军事等制度来说的，而法治从来都是相对于人治来说的，没有人治就无谓法治，相反亦然。其次，法律制度包括民法、刑法等一套法律规则以及这些规则怎么指定、怎样执行和遵守等制度；法治与人治则是两种对立的治国理念和原则，即国家的长治久安不应寄希望于一两个圣主贤君，而关键在是否有一个良好的法律和制度，这些良好的法律还应得到切实的遵守。再次，任何一个国家的任何一个时期，都有自己的法律制度，但不一定是实行法治。"

Qin and Han dynasty Law[edit]

Qin Law

http://books.google.com/books?id=M7oseTr553wC&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false

Han Law

http://books.google.com/books?id=Dx8VAAAAIAAJ&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false

http://books.google.com/books?id=FTWvWA_fD5oC&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false

On the Pre-Tang Development of the Law of ‘Treason’: moufan, dani, and pan Geoffrey MacCormack[edit]

http://kuscholarworks.ku.edu/dspace/bitstream/1808/3848/1/maccormack2005.pdf

Civil Law in Qing and Republican China By Kathryn Bernhardt, Madeleine Zelin, Philip C. C. Huang[edit]

http://books.google.com/books?id=TnMCjXbm1ncC&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false

04:19, 30 January 2014 (UTC)

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[1] 李步云：二十年改一字从刀“制”到水“治” "关于法制与法治的区别，我将它概括为三条：首先，法制是法律制度的简称，法律制度是相对于一个国家的经济、政治、文化、军事等制度来说的，而法治从来都是相对于人治来说的，没有人治就无谓法治，相反亦然。其次，法律制度包括民法、刑法等一套法律规则以及这些规则怎么指定、怎样执行和遵守等制度；法治与人治则是两种对立的治国理念和原则，即国家的长治久安不应寄希望于一两个圣主贤君，而关键在是否有一个良好的法律和制度，这些良好的法律还应得到切实的遵守。再次，任何一个国家的任何一个时期，都有自己的法律制度，但不一定是实行法治。"

[1]