Western Values – Asian Values: A Chinese Revolutionary’s View on Western and Chinese Family

One of the major differences between China and the West is the importance which the family – with its hierarchical structure and its complex web of social roles, regulations, duties, and moral values – has in Chinese society (see: Filial Piety in Chinese Culture). Despite major social and economic changes, the Chinese-speaking world has retained some of the core elements of the traditional Confucian family. This is also demonstrated by the fact that the legal system of countries in the Chinese-speaking world has been heavily influenced by Confucian values.

The Confucian worldview is based on the idea that human relationships are functional and hierarchical. The individual exists only as part of a network in which interaction is regulated by age, gender and social position. It is no coincidence that many Chinese who visited the West during the late-Qing and early Republican era were troubled by the lack of hierarchy, social roles, and rules of propriety in Western societies.

It is very interesting to read nowadays, with the benefit of hindsight and the knowledge accumulated in two centuries of contact between East and West, what Chinese travellers thought about the West at the turn of the 20th century. One of the most captivating books about the Chinese perception of the West is America Through the Spectacles of an Oriental Diplomat by Wu Tingfang.

Wu Tingfang (1842-1922, 伍廷芳; pinyin: Wŭ Tíngfāng), also known as Ng Choy (伍才; pinyin: Wŭ Cái) was born in the so-called Straits Settlements, in what was then a part of the British Empire. Wu Tingfang was a politician and diplomat who spent several years in the United States. He was a monarchical reformist, an advocate of the movements that tried to modernize Imperial China. However, before the Chinese Revolution of 1911, he became a supporter of Sun Yat-sen, championing the overthrow of the Manchu Dynasty and the establishment of the Republic of China.

Wu Tingfang played an important role in the 1911 revolution. He served as a foreign affairs representative for the Shanghai Military Government and subsequently for the revolutionary government. Afterwards he was appointed as the chief Republican delegate in the negotiations between the Republican revolutionaries and the Manchu government which lasted until the abdication of the imperial dynasty on 12 February 1912 (see Linda Pomerantz-Zhang: Wu Tingfang (1842-1922): Reform and Modernization in Modern Chinese History, 1992, p. 193).

Indeed, his name was even mentioned in an edict issued on December 1911 by the Empress Dowager, in which she declared that

the representative of the People’s Army (i.e. the Revolutionaries) Wu Ting-fang, steadfastly maintains that the mind of the People is in favor of the establishment of a republican form of government as its ideal […]. This is a matter that should not be decided by one part of the nation alone […] Therefore it is advisable to call a provisional National Convention and leave the issue to the Convention to decide (see Harley Farnsworth MacNair: Modern Chinese History – Selected Writings. Vol. 2. 1927, p. 717).

Wu Tingfang was in many respects a product of the British colonial experience in Asia. Born to a merchant family in Singapore and raised in Guangzhou and Hong Kong, Wu was educated in missionary schools before going to Great Britain for professional legal training. A pioneer in modern journalism, Wu was the first Chinese to receive British training as a barrister, the first Chinese to practice as a barrister in Hong Kong, and the first Chinese to serve as a member of Hong Kong’s Legislative Council (Pomerantz-Zhang 1992, p. 1).

In 1896 Wu was appointed China’s Minister to the United States, Spain and Peru (ibid. p. 3). After several years in the United States, Wu Tingfang wrote down his impressions of American life, customs, and society. These impressions became the book America Through the Spectacles of an Oriental Diplomat (1914). One of the chapters of the book deals with ‘American women’. Coming from a Chinese background, Wu was astonished by the independence of American women and by the fact that they chose their husbands by themselves, an inconceivable thought in China at that time:

One very conspicuous feature in the character of American women is their self-control and independence. As soon as a girl grows up she is allowed to do what she pleases, without the control of her parents […] This notion of independence and freedom has modified the relation of children to their parents. Instead of children being required to show respect and filial obedience, the obligation of mutual love and esteem is cultivated. Parents would not think of ordering a girl or a boy to do anything, however reasonable; in all matters they treat them as their equals and friends; nor would a girl submit to an arbitrary order from her mother, for she does not regard her as a superior, but as her friend and companion.

I find it is a common practice among American girls to engage themselves in marriage without consulting their parents. Once I had a serious talk on this subject with a young couple who were betrothed. I asked them if they had the consent of their parents. They both answered emphatically that it was not necessary, and that it was their business and not their parents’. I told them that although it was their business, they might have shown some respect to their parents by consulting them before committing themselves to this important transaction. They answered that they did not agree with me, and as it concerned their own happiness alone, they had a perfect right to decide the matter for themselves. This shows the extreme limit to which the Americans carry their theory of independence. Unless I am greatly mistaken, I fear this is a typical and not an isolated case. I believe that in many cases, after they had made up their minds to marry, the young people would inform their respective parents of their engagement, but I question if they would subordinate their own wishes to the will of their parents, or ask their consent to their engagement.

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Voluntary Surrender and Confession in China’s Legal System – From the Empire to the People’s Republic

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A magistrate holds court (late 19th century. Author unknown. Public domain, via Wikimedia Commons)

China’s Televised Confessions

On January 17 Gui Minhai, a Chinese-born Swedish citizen, made a high-profile confession on China Central Television (CCTV), saying that he had turned himself to the authorities voluntarily. He confessed to having caused the death of a 20-year-old woman while drunk-driving back in 2003. According to China’s state media, Gui had subsequently fled mainland China with fake documents. “Returning to the Chinese mainland and surrendering was my personal choice and had nothing to do with anyone else”, the 52-year-old said. “I don’t want any individual or institutions, including Sweden, to interfere in anything to do with my return”.

Gui Minhai had mysteriously disappeared from his home in Pattaya, Thailand, on 17 October 2015. A camera in his Thai condo showed him that day as he came back home carrying groceries. Shortly afterwards, he drove away together with a man who had been waiting for him in the garage. According to Gui’s daughter, he suddenly stopped communicating with her. She did not know what had happened until she received an e-mail from Lee Bo, one of her father’s business associates: “Your dad has gone missing”, Lee wrote. “We’re afraid he was taken by Chinese agents for political reasons”. It has been suggested that Gui’s alleged abduction may be part of “Operation Fox Hunt“, launched by Xi Jinping in 2014 with the aim of forcibly repatriating Chinese citizens wanted by the government, including political dissidents. Thailand’s immigration authorities had no record of Gui leaving the country, a circumstance that contradicts Gui’s claim of having returned to China voluntarily. Continue reading

Legalism And Leninism In China’s Constitutional History

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The National People’s Convention met in the Great Hall of National Central University in Nanjing on May 5, 1931. Seven days later the Convention adopted the Provisional Constitution (photo by unknown author, via Wikimedia Commons)

When the Qing Dynasty was overthrown in 1911 and the Republic of China (ROC) was proclaimed, the revolutionaries led by Sun Yat-sen embarked on an ambitious experiment to modernise the country according to liberal Western ideals of democracy, human rights and division of powers. The new Republican government issued a Provisional Constitution which guaranteed progressive democratic rights, including judicial independence. However, after the first elections held in 1913, general Yuan Shikai unlawfully seized power and suppressed the elected parliamentary majority. Sun Yat-sen and his party, the Guomindang, were forced into underground opposition. When Yuan died in 1916, the central government fell apart, and regional warlords created personal fiefdoms in which they ruled like monarchs.

The 1912 Constitution was inspired by the ideals of the American and French revolutions. But the failure of democracy, the repression suffered at the hands of Yuan Shikai and the warlords, and the threat of foreign imperialism convinced Sun Yat-sen that democracy in China was unattainable as a short-term goal. He observed with keen interest the events of the Russian revolution, and the triumph of the Communists led by Lenin seemed to him an example of a revolutionary party that had succeeded where the Guomindang had failed. Sun asked for Soviet help, and Russian advisers were sent to China to reorganise the Guomindang on the basis of Leninist principles. Continue reading

Legalist Tradition And Criminal Law – Republic Of China vs People’s Republic Of China

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The original Constitutional Drafting Committee of the newly founded Republic of China, photographed on the steps of the Temple of Heaven in Beijing, where the Draft was completed in 1913 (photo by Rowanwindwhistlerhttp://www.archive.org/details/thefightforthere14345gut, CC BY-SA 3.0 via Wikimedia Commons)

In a previous post we have demonstrated that the Constitution of the People’s Republic of China (PRC) contains fundamental elements which are consistent with, if not directly derived from, Legalist principles. In this chapter we shall analyse and compare the Legalist elements contained in the criminal codes of the Republic of China (ROC) and of the PRC.

Legalism and the Criminal Code of the Republic of China

In 1911 the Xinhai Revolution overthrew the Qing Dynasty which had ruled China for over 260 years. On January 1st, 1912, the leader of the insurgents, Sun Yat-sen, proclaimed the foundation of the Republic of China (ROC). On March 11 the government promulgated the Provisional Constitution of the Republic of China (中華民國臨時约法). The Constitution embodied Sun’s political ideals, which he later enshrined in the Three Principles of the People. Sun had been educated in the United States and his worldview had been shaped by the three major Western ideologies of the 18th, 19th and early 20th century, namely nationalism, democracy and socialism. In his Three Principles, Sun tried to synthesize these three political currents in order to revitalise and strengthen China.

The Provisional ROC Constitution was heavily influenced by Western liberal democratic ideals, most especially the principle of free popular elections, of protection of individual freedoms and rights, and of division of powers, including judicial independence (法官獨立). Article 51 stated: “Higher government authorities shall not interfere with the independent work of judges” (法官獨立審判不受上級官廳之干涉). Continue reading

Confucianism And The Law In Singapore And Taiwan

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Image from the Classic of Filial Piety (via Wikimedia Commons)

In the previous posts we have shown how Legalist and Confucian values as well as the legal codes of imperial China have influenced the legal system of the People’s Republic of China (PRC). We have concluded that the Communist state emphasizes Legalist principles and legal traditions that aimed at protecting dynastic rule from rebellion and treason. Confucian values, by contrast, play only a secondary role. We shall now show how two other states belonging to the Chinese cultural sphere, the Republic of Singapore and the Republic of China (ROC) on Taiwan, have incorporated traditional Confucian principles into their legal system.

Singapore And Filial Piety

Singapore is a multicultural society with English as its main official language. However, because three-quarters of its population are ethnic Chinese, Chinese culture and traditional values have exerted a deep influence on the official discourse and the legislation of the city-state. During the first two decades following the foundation of the Republic in 1965 and the consolidation of power by the ruling party, the People’s Action Party (PAP), traditional values did not play a substantial role in policy-making. The government was too busy building up the state and the economy. At a time when the West still led the global economy, Singaporean leaders did not seem eager to emphasize Asian traditions. Continue reading

Provisional Constitution Of The Republic Of China (1931)

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Chiang Kai-shek’s Nationalist government in 1930 (source: Wikipedia Commons)

The following text is the Provisional Constitution (約法) of the Republic of China as adopted by the National People’s Convention (國民會議) on May 12, 1931. The Provisional Constitution included Sun Yat-sen’s principle of “political tutelage”, de facto providing the Guomindang government with dictatorial powers. The Constitution remained in effect until 1936, when the government promulgated a new draft constitution.

PREAMBLE

The National Government, in order to reconstruct the Republic of China on the basis of the Three Principles of the People and the Constitution of Five Powers, which forms the underlying principle of the revolution, having now brought the revolution from the military to the political tutelage period, deems it necessary to promulgate a Yueh Fa (Provisional Constitution) for general observance, so that the realization of constitutional government may be accelerated and political power restored to a popularly-elected government; and further, in pursuance of the last will of our late Leader, has called at the national capital the Kuo-Min-Hui-I (National People’s Convention). Continue reading

Law In Post-Mao China: Confucianism, Legalism, Imperial Traditions

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The Great Hall of the People, Beijing (photo by Thomas.fanghaenel, licenced under CC BY-SA 3.0 via Wikipedia Commons)

In the previous post we have described the similarities and differences between Maoism and Legalism, and in particular we have shown the parallels between Maoist and Legalist doctrines regarding the establishment of an autocratic, centralised state. Moreover, we have demonstrated that Mao Zedong rejected Confucian values, which he viewed as “reactionary”. In this post we will show how the People’s Republic of China (PRC) in the post-Maoist era has preserved elements of Legalism, Leninism and of the imperial legal system; at the same time, however, it has also rediscovered Confucianism as a more humane and family-oriented ideology which helped the Communist state overcome the brutality and the excesses of Maoist class struggle. Beijing’s attempt at combining Legalism, Leninism, Maoism and ancient imperial traditions has created a state with ideologically inconsistent and weak foundations. Yet at the same time the Chinese Communist Party (CCP) has succeeded in preserving power and consensus exactly because it draws upon such broad and various traditions.

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Mao Zedong, Legalism and Confucianism – Similarities And Differences

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Red guards during the Cultural Revolution – Image by Belinsky (Public domain) via Wikimedia Commons

When Mao Zedong proclaimed the founding of the People’s Republic of China (PRC) on October 1, 1949, the Chinese Communist Party (CCP) stood before the tremendous task of rebuilding the state on the basis of Soviet-style Communist principles. Yet despite their desire to create a new China, Communist leaders drew on old political and social traditions which brought about a hybrid of ancient imperial policies and Communist doctrines. Other Chinese states, such as the Republic of China (ROC) on Taiwan as well as Singapore, have also incorporated traditional values and ideas into their state-building process. It is the purpose of the present and the following articles to show how the two most important ancient schools of thought – Legalism and Confucianism– have influenced the legal systems of contemporary states in the Chinese cultural sphere. First, we shall analyze the relationship between Maoism and Legalism; in the subsequent posts, we shall examine the rediscovery of Confucianism and the blending of Confucianism and Legalism in post-Mao China; and in the last post, we will see how the ROC and Singapore have assimilated and adapted Confucian tenets.

Mao Zedong And Legalism

According to Fu Zhengyuan, the” transplantation of Marxism-Leninism into the Chinese political tradition was a smooth and seamless process”. Numerous Western scholars, too, have noted how the political traditions of imperial China created a fertile ground for Communist ideology. In particular, the ancient philosophy of Legalism, with its emphasis on state power, wealth and strength, appears to have facilitated the creation of a totalitarian, centralised and oppressive government. Fu goes as far as to argue that the PRC is the realisation of a Legalist “utopia” (Zhengyuan Fu: China’s Legalists: The Earliest Totalitarians and Their Art of Ruling, 1996, p. 128).

As we have explained in a previous post, the Legalist school was a philosophy that aimed at creating a strong, rich and powerful state under the leadership of an absolute monarch. Legalism emphasized the establishment of a comprehensive legal system in order to rule the state effectively and to prevent uprisings. The laws should be harsh so as to instill fear in the people and make them ready to fight and die for their king, as only by such means would the state maintain an army capable of crushing its rivals. Internally, the Legalists were concerned with the threat of rebellion and treason. They believed that the legal system should reward the capable and punish the guilty so as to stamp out every attempt to subvert the state.

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China’s Legal System And The “Ten Abominations”

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Escape of Emperor Xuanzong of the Tang Dynasty during the An Lushan rebellion. In the Chinese legal system rebellion and treason were considered two of the “ten abominations” (by Li Zhaodao, Public Domain, wikimedia commons)

Before the overthrow of the Qing Dynasty in 1911, China’s legal system differed from that of liberal Western states in three major aspects: First, the apex of the entire legal system was the absolute monarch; it was the emperor who issued and abolished laws, and the most serious crimes of the legal code were those which endangered imperial dynastic rule and desecrated the emperor and his property. Second, Chinese law incorporated major principles of Confucian ideology, most notably its emphasis on the family, on filial piety and on strict social roles and hierarchies. Third, the imperial legal system was designed to impose social norms – mostly of Confucian origin – with the aim of creating a self-regulating society. These three aspects of imperial China’s legal system are reflected in what imperial legal codes called “the ten abominations” or “the ten evils” (十惡), which were classified as the most heinous of all crimes. Even the emperor himself could not pardon subjects who had been found guilty of committing them.

The term “ten abominations” was invented by the Legalist school in order to identify those crimes which the state considered most threatening to political and social order (see: Charles Benn: Daily Life in Traditional China: The Tang Dynasty, 2002, p. 197). The first nucleus of the “ten abominations” can be found in the law codes of the Northern Qi kingdom (550-577 AD), which divided crimes into ten categories (see Xin Ren: Tradition of the Law and Law of the Tradition: Law, State, and Social Control in China, 1997, p. 37). Confucian scholars initially rejected written laws as a means of governance. However, the idealism of early Confucian thought did not suit the emperors’ need for a stable and strong state. Beginning with the Han Dynasty, Confucian scholars incorporated Legalist doctrines into their philosophy of state-building. Confucians thus compiled law codes, but they infused them with their own moral and social philosophy. The first comprehensive legal code that has survived to this day is the Great Tang Code issued in 653 AD (see Patricia Buckley Ebrey: Chinese Civilization: A Sourcebook, 2009, p. 116). The following dynasties up until the Qing Dynasty built their legal system upon Tang law. In particular, the “ten abominations” remained almost unchanged throughout the centuries. We shall now examine the “ten abominations” as they were formulated in the last legal code of imperial China, i.e. that of the Qing Dynasty. Continue reading