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Author: Understanding tradition key to political, legal relationships with ever-changing China

Wednesday, October 23, 2013

LAWRENCE — The idea of transparency is central to Western law and policy. Lawmakers and politicians regularly tout the importance of being clear in why and how laws are made, and in what specific behavior those laws require or prohibit. Things are somewhat different, however, in one of the largest and increasingly powerful nations in the world — China. A University of Kansas professor and alumna have co-authored a book exploring the notion and history of transparency in Chinese law and how an understanding of the concept is central for understanding China.

John W. Head, Robert W. Wagstaff Distinguished Professor of Law at KU, and Xing Lijuan, assistant professor of law at the City University of Hong Kong, wrote “Legal Transparency in Dynastic China: The Legalist-Confucianist Debate and Good Governance in Chinese Tradition.” While the book explores the notion of transparency in China from about 1000 B.C. to 1911, it is not only for those interested in history.

“It looks like it’s really old stuff, from quite far away,” Head said of the subject matter. “It might seem, therefore, that what we’ve written in this book is far removed from current reality. But I think it’s just the opposite.”

As China becomes increasingly central to the global economy and more politically important, Head says it would behoove those in charge of maintaining relationships with that country and its leaders to understand their legal history. Throughout the many centuries the book examines, a dominant line of thinking in Chinese law was not that it was imperative for laws to be written down and made known publicly. It was more vital that society was governed by the overwhelming influence of a highly educated, virtuous and enlightened elite class of virtuous people whose sheer power of example would lead the general population to behave properly.

The book examines how Confucianist thought led to the idea that an elite class should govern society as much as possible without written laws. It also traces the challenges that Confucianist thought received from a competing school of thought — that of the so-called legalists — and how the resulting debate led to a compromise around the 3rd century B.C. that resulted in a “Confucianization” of the law. The authors go on to explain ways in which the competing ideologies determined how Chinese law — a system that many consider one of the most effective in human history — functioned for many centuries.

While the Chinese legal system eventually embraced transparency to a certain extent, the Confucianist ideals never disappeared. Head said China’s legal system is now largely a mix of a traditional system that embraces opaqueness and what Western society might consider a relatively “modern” system with an impressive array of published laws, a somewhat transparent process for enacting those laws, and a full complement of law schools, judges, legal practitioners and other features that look similar in many ways to those of the West. However, the last five to 10 years have seen a resurgence in Confucianist thought in China — a development strongly supported by the government to help manage dramatic cultural changes occurring in the country. An official policy of urbanization continues to expand very large cities, absorbing thousands of citizens who were formerly agricultural peasants. Those changes are leading to questions of identity not only among the citizens but those in power — questions that the government hopes a return to Confucianist values will help address. The political motto of establishing a harmonious society put forward by the Chinese government in 2004 has its deep roots in Confucianism.

“Taking all these factors into account, it strikes me that there is great contemporary value in understanding how Confucianism dealt with legal transparency and opaqueness throughout Chinese dynastic history,” Head said.

The book goes on to examine how the idea of legal transparency fits into current Chinese law, and how the influence of Western powers have sought to increase its presence there. Throughout, the book provides a narrative of how the idea of transparency has been addressed in more than 2,000 years of Chinese history.

Head and Xing began work on the book in 2011-2012 when the latter was a doctoral student at KU’s School of Law. Head, drawing from legal training in both the U.S. and England, has broad experience in international and comparative law, with some special emphasis on China. Xing has graduate degrees and practical experience in both U.S. and Chinese law, with specializations in international trade and legal history. Moreover, Xing provided extensive translations of Chinese legal and historical documents as well as cultural insights that were central to the collaborative research.

The result is a book that is of value not only to historians or those interested in Chinese law, but also to policy makers internationally and “those in charge of relationships with a changing China,” Head said. “Some things, if not eternal, are very, very long-lasting. This idea of the rejection of transparency, I think, is one of them — and it’s worth understanding.”

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