Professor's book chapter traces evolution of Chinese law, current lack of a 'legal soul'
LAWRENCE — China is a major player on the world stage, and nations around the globe watch it carefully to see what steps it will take next politically, economically and legally. But a relatively recent change in China’s approach to law has both altered its “legal soul” and made it unpredictable, a University of Kansas professor wrote in a new book chapter.
For centuries, Chinese law was largely guided by Confucianism. But in the early 20th century, that approach was discarded in favor of legalism. John Head, Robert W. Wagstaff Distinguished Professor of Law at KU, traces the formal versus informal competing philosophies of Chinese law, the evolution of the nation’s legal philosophies over more than 25 centuries and how that evolution contributes to the current state of the country and its citizens’ lives in “The Routledge International Handbook of Morality, Cognition, and Emotion in China,” edited by Ryan Nichols.
In his chapter, Head traced the more than the 2,000-year tradition of Chinese law. He wrote that in ways not found in other countries, the Chinese legal tradition has been based on two competing ideologies: Confucianism, or an informal approach of unwritten rules enforced by a highly cultivated elite, and legalism, a much more formal approach involving written laws backed by harsh punishments. Over many centuries, the two approaches have competed for influence and affected not only the specific laws and rules in the nation, but its overarching attitudes and moral psychology as well. This competition largely ended, though, with the collapse of the Qing dynasty and the ascent of the People’s Republic of China and communism in the early 20th century – and then most emphatically by the revolutionary creation of the People’s Republic of China midcentury. Then, the informal approach was cast aside and legalism has been the dominant philosophy since, thus altering China’s “legal soul,” Head wrote. He added that his intent was not to criticize or advocate for either approach but to better understand Chinese legal thought and moral philosophy.
“I recognize there are good things happening in China as well, especially in terms of environmental and ecological strategies,” Head said. “The government has made quite an impressive pivot to place environmental concerns front and center in its plans. My chapter is not about that specifically, but about how China has for centuries featured a remarkable balance between these competing forms of legal theory. In the last century, that balance has largely been blown apart. And if we regard the informal, Confucianist element in the balance to provide the glue, or legal soul to hold things together in China, then this is troubling.”
After tracing the back and forth between formal and informal approaches through numerous dynasties and governments, Head wrote about why the lack of a legal soul can be troubling for the world at large.
“My argument is they don’t have the glue, or legal soul, to hold things together. That, I think, is problematic in the larger sense,” Head said. “In a nutshell, I find it troubling because we want big players on the world stage to be predictable. China, it seems to me, is extremely hard to predict — partly because of this change in the character of its legal system — how it will behave going forward.”
While Head wrote that many nations around the world could be similarly described as unpredictable in governmental and legal terms, he found that the sheer size and influence of China make it much more consequential. Furthermore, the weakening of an informal legal approach as defined by Confucianism can also weaken the ethical foundations of the country’s society, Head wrote, as evidenced by the country’s ongoing human rights emergencies and numerous violations thereof, both documented and alleged.
Regardless of a nation’s political system, it must rely on its people to influence said government behavior, and without a shared ethical mooring, it is more likely for dangerous political leadership to take the country in directions not in the interest of the global greater good, Head wrote. A nation’s law also carries its policy as to how the national consciousness is expressed as well as how national goals are set and pursued.
The book, available May 10, takes a broad look at how contemporary Chinese cognition, behavior and emotions surrounding morality contribute to the national consciousness. The larger topic, and how law contributes specifically, are important ways to understand one of the preeminent nations in the world. Further inspection of China’s battling approaches of formal versus informal takes on law, one the United States and most other countries do not have, can help build understanding.
“To see this formal-informal competition in action is instructive, not only about China, but also about ourselves,” Head said.