The Government of China (1644-1911)

By Pao Chao Hsieh | Go to book overview

CHAPTER VIII
THE JUDICIARY

Prior to the discussion of the administration of justice, a few words about the theory, development, and special features of the Chinese laws will greatly help in the understanding of the system. In a country where ethics was the principal regulator of human conduct, virtue the chief requirement of the rulers, arbitration the common means of settling disputes, compromise the general consequence of disagreement, law took only a secondary place in the encouragement of good, and the discouragement of evil doings. The philosophy of the people regarded disputes as evidence of an absence of virtue; an appeal to law as an acknowledgment of this lack of moral quality; an appearance in court, for women especially, was a tremendous blow to one's social prestige, if not a disgrace. The government, on the other hand, made repeated attempts to discourage appeals to law by making the punishments so severe that, on account of their severity, people would not dare try the courts unless driven to them as a last resort. Indeed, the discouragement by the government of appeals to law reduced litigations to an incredibly small number, although discouragement also came from the inefficiency of judicial administration, as well as the severity of law. Thus the corruption of the bench, difficulty of securing, and ease of purchasing, justice, the risk of undue, severe punishment, the abundant means of settling disputes outside the Magistrate's court, the ethical prejudice against settlement of disputes by law, all combined to make law a curse instead of a blessing to the people. Then, too, the laws in China were not things to which people had been educated. Except the professional writers of writs, people were guided by conscience, rather than by statute, looking at things to find out whether they

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