Academic journal article Suffolk Transnational Law Review

Strengthening the Rule of Virtue and Finding Chinese Law in "Other" Places: Gods, Kin, Guilds, and Gifts

Academic journal article Suffolk Transnational Law Review

Strengthening the Rule of Virtue and Finding Chinese Law in "Other" Places: Gods, Kin, Guilds, and Gifts

Article excerpt

I. INTRODUCTION

Discussions about the rule of law in China today often do not consider the role of virtue or ritual. At the same time, many bemoan slow or no legal reform. Prof. Minzner states that, despite reforms in the 1980s and 1990s, China has turned away from law back to practices such as mediation. (1) He also urges a third wave of Chinese legal scholarship that goes beyond formal legal institutions.* 2 What drives China's present and future legal landscape? Mediation is not only a pre-1978 Maoist practice, but also an ancient ritual whose goal is virtue formation. This article proposes that contemporary law is animated in part by the ancient blend of ritual and law in traditional Chinese law (TCL), (3) and by preference for ritual over law. Therefore, effective legal reform should include a study of contemporary rituals, and the rule of virtue should be strengthened as well as the rule of law.

Although China's current legal regime began only in 1978, TCL was relatively continuous and stable for hundreds of years until the tumultuous events of the twentieth century. It preferred the rule of virtue as expressed through ritual. The goal of this article is twofold: to present the inseparable blend of ritual and law in TCL in four parallel and overlapping jurisdictions, and to present several contemporary examples of this as well.

We will first explore the foundation of TCL--that is, flourishing and the invisible world within the traditional Chinese worldview--then the tapestry of its multiple jurisdictions, and then communion (ritual) and accountability (law) in each jurisdiction. In addition to dynastic codes and courts, TCL can be found in these "other" places: imperial and ancestral rites, family codes and courts, merchant codes and courts, and spirit codes and courts. Gifts and shared food and drink are the quintessential rites, and are the common thread in each jurisdiction.

We will also consider contemporary rituals familiar to those who do business and practice law: lavish gifts, banquets, and wine. They become comprehensible within the TCL framework. China is now the world's fastest-growing luxury goods market. (4) Banquets for officials account for one third of the nation's dining out expenses. (5) Also, drinking regularly accompanies negotiations, but unfortunately, officials have died because of excessive drinking at state functions. (6) I conclude by urging not only the further study of contemporary rituals and invisible accountability embedded in Chinese law today, but also an examination and strengthening of the rule of virtue to avoid excesses. Without exploring ritual and other codes, China's traditional state codes seem incomplete; without exploring contemporary rituals, China's current legal regime likewise is incomplete. Let us now turn to the foundation of TCL.

II. FLOURISHING, THE INVISIBLE AND VIRTUOUS EXCHANGE

   I met a Chinese graduate student this summer. We made an
   appointment to talk. She brought peaches. I treated her for a
   dinner of lotus roots, dumplings and eight-treasure rice porridge,
   and gave her advice about her research on civic virtue. (7)

TCL is part of a worldview in which Heaven, earth, and man are a lively whole and a virtuous hierarchy. (8) The visible and invisible worlds are interdependent. Following Heaven [[??], Tian Dao] leads to flourishing. (9) Nature, deities and ancestors reveal Heaven's will. At the same time, spirits are dependent on the living for sustenance. (10)

Every person, living and dead, therefore can cultivate virtue through ritual gifts of shared food. (11) Subordinates offer food and wine, and seek blessing from superiors, including ancestors and spirits. Superiors bless subordinates. The Chinese characters for "gift" mean ritual object [[TEXT NOT REPRODUCIBLE IN ASCII]], Moreover, the feast pulls the universe together. It represents abundance from Heaven, human cultivation, and communion with invisible and visible companions. …

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