Academic journal article China Perspectives

China and Democracy

Academic journal article China Perspectives

China and Democracy

Article excerpt

China and Democracy Sources arid Resources Mireille DelmasMarty and PierreÉtienne Will (eds.), La Chine et la démocratie, (China and Democracy) Paris, Fayard, 2007, 896 pp.

The contributors to La Chine et la démocratie, edited by Mireille Delmas-Marty and Pierre-Etienne Will, address the following question: "To what extent does Chinese political culture, in both its historical dimension and in a larger sense Chinese culture in general, contain elements capable of adjusting to the values and practices of modern democratic liberalism offered as an example to China over the past century or more (l)

The book, made up of 21 chapters grouped into six sections, takes the reader from the past to the present, with some authors contributing more than one chapter. The chapters by Anne Cheng and Pierre-Etienne Will in the first section, "Tradition and reconstruction," challenge some of the received ideas on China that feed images of the country in the Western imagination. Will retraces contrasting images of China in nineteenth century European authors' worb that oscillate between despotism and democracy, adding nuance to the usual perception that the eighteenth century was characterised by Sinophilia and the nineteenth by Sinophobia. Cheng, for her part, applies a systematic and critical analysis to research trends focused on the idea of "seeds of democracy in Confucian tradition." She traces the origins of these currents, stressing the need for a more specific definition of "Confucianism," which is often used in an essentialist and imprecise way.

Will and Jérôme Bourgon share the second section, which is devoted to imperial institutions. Will deals with curbs on excessive power under the Ming dynasty, presenting three censorship missions and a case study from Emperor Wan Li's rule. He makes a nuanced analogy with the constitutional control developed in France, and sheds li^it on the normative bases that could invoke censorship in the implementation of control functions. Will aims to establish that several control institutions at the time "functioned quite well alongside the notion of Constitution" as understood today. Bourgon offers a re-examination of many received ideas on China and its supposed ignorance of the notion of "law" as advanced by some European and American Sinologists. He focuses on the principles of legality and rule of law in the context of their importance to the question of democracy. Bourgon notes that China adopted "the first judicial system in the modern sense of the term" back in the third century. He deals with the question of whether China was the originator of the principle of legality of punishment, detailing several elements from the history of Chinese law in a comparative perspective, and he forcefully refutes the idea that China was unaware of rule of law. He concludes with a call for overcoming several epistemological obstacles, such as the concept of "oriental despotism," in order to understand law in imperial China.

The third section deals with transitions, with four contributions dealing with law at different stages from the end of Empire to the Republic. Bourgon studies the emergence of the legal profession in the "ancien régime" between 1740 and 1930, and establishes the existence of a veritable epistemic community of jurists toward the end of the imperial era. The Tongzhi restoration marks a turning point in this community's formation. While in the political sphere this period is associated with the last stages of Chinese conservatism, Bourgon shows that it was in fact rich in innovations for the evolution of Chinese law and legal professions, notably in the establishment of magistrates and the Westernisation of China's legal system.

Zhang Ning examines the handling of the death penalty, banditry, and special practices, focusing on several penal codes from the late Qing and Republican periods. She stresses the need to understand the drawn-out internal turmoil of China's history over the last 130 years in order to grasp the factors behind the "death penalty culture" associated with China today. …

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