Abstract
There is yet to be any animal welfare or protection law for domestic animals in China, one of the few countries in the world today that do not have such laws. However, in Chinese imperial law, there were legal provisions adopted more than a 1,000 years ago for the care and treatment of domestic working animals. Furthermore, in traditional Chinese philosophy, animals were regarded as constituent part of the organic whole of the cosmos by ancient Chinese philosophers who saw no strict delineation between humans and non-human animals. Notwithstanding, the attitude and practice towards animals in ancient Chinese life was also ambivalent and was predicated upon the practical utility of animals for the service of humans and society. Such practice can be seen through the legal provisions in imperial China. This paper first discusses animal’s place in traditional Chinese philosophy and then in Chinese imperial law. It raises the issue of the gap discernable from the philosophical thought on animals and practice regarding animals in everyday life in China. The paper argues that given the gap in perception and attitude regarding animals, law can play an important role that moral teaching has not been able to achieve.
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Notes
Slightly different English translations of Borges’s work from which the Chinese encyclopaedia entry was cited can be found in Other Inquisitions (1937–1952), translated by Ruth L. C. Simms (University of Texas Press [3]), and Jorge Luis Borges: Selected Non-Fictions (Penguin, 2000) translated by Levine and Weinberger.
Given the more recent genetic studies and genome mapping, it is time that we reconsidered the taxonomy of animals after all. As we now know, the traditional taxonomy in which humans are classified as Hominids in the animal kingdom under the categories of mammals and primates while orang-utans, gorillas and chimpanzees are classified as Pongids under the categories of mammals and primates seems to be contrary to what modern genetic science tells us. We now know that human genes are more than 98% identical to those of chimpanzees and around 97% the same as those of orang-utans and in scientific classification, justifying the change of the Western taxonomy we are so familiar with (see Ridley [23]). In 2006, in the Hiasl case in Austria involving a chimpanzee, suggestions were made that chimpanzees should be reclassified in the same category as homo sapiens given the latest modern science.
Although the example from Borges was not real, as pointed out by Hall and Ames [17, p. 253], in traditional Chinese thinking, to the dismay and disquiet of Westerners, ‘[t]he Chinese don’t seem to know what a definition is!’ Instead, the Chinese often used examples, models and analogies.
A very different view is that according to Economy [11], the prevalent Chinese view was and is that man can surely conquer nature in the sense that man can change and alter the natural environment. Economy says that ‘China’s history suggests a long deeply entrenched tradition of exploiting the environment for man’s needs’ (Economy [11], p. 17).
In contrast, a popular saying in contemporary China is Mao’s years in Chinese is ren ding sheng tian (Man will surely conquer nature), in contrast to the ancient Chinese philosophical teaching of tian ren he yi (heaven and humans are one or the unity or unification of man and nature). This latter saying has become now very popular in today’s China, in both the political circles and for ordinary people.
A different view holds that ‘China lacked any compelling ethos of servation. Rather, attitudes, institutions, and policies evolved from traditional folk understanding and philosophical thought, such as Confucianism, which most often promoted man’s need to use nature for his own benefit’: Economy [11, p. 17]. For detailed and scholarly discussion of Confucianism and other leading philosophies in ancient China, see Schwartz [25] and Hall and Ames [16].
For detailed discussion of human-animal relations throughout history, see [6].
For discussion of Western philosophy denying moral status to animals, see Steiner [26].
For a history of China’s environmental degradation, see Elvin [12]: The Retreat of the Elephants: An Environmental History of China, which mainly discusses environmental degradation with brief comments on the disappearance of animal species in China.
The ancient character fa (law) contains the symbol zhi. According to legend, zhi or xiezhi was a one-horned mythical beast, believed to be able to cure crooked things, giving rise to the meaning of making something or someone ‘straight’ (see the image at the end of the paper). According to Bodde and Morris [2], this idea of a wild animal being a referee was reflected in the costume later worn by magistrates in China. From Han Dynasty (206B.C.–220A.D.) to the end of the imperial dynasty in 1911, Chinese legal officials wore the crests of xiezhi on their robes and hats, a practice that signified the function of expelling the crafty and the obsequious. The modern character fa is a simplified version of its ancient form in which the symbol for zhi has been deleted on the top right, but it is unclear exactly when this simplified character was first used.
The Tang Code is considered a great achievement of traditional Chinese law. It is a comprehensive legal code incorporating both criminal and civil law elements. It was first created in 649 A.D. during the Tang Dynasty, and it became the basis for all the legal codes of the succeeding dynasties in China up to the last dynasty Qing. It was also modelled by other East Asian countries.
The English translation of the Qing code used in this paper is taken from Jones [21].
Francione [14] calls it ‘moral schizophrenia’ in that people often say one thing and do another in relation to animals.
References
Blakeley, Donald N. 2003. Listening to the animals: The Confucian view of animal welfare. Journal of Chinese Philosophy 30(2): 137–157.
Bodde, Derk, and Clarence Morris. 1973. Law in imperial China, exemplified by 190 Ch’ing dynasty cases with historical, social, and judicial commentaries. Philadelphia: University of Pennsylvania Press.
Borges, Jorge Luis. 1984. El idioma analítico de John Wilkins (The Analytical Language of John Wilkins), translated by Ruth L. C. Simms. Dallas, Texas: University of Texas Press.
Callicott, J. Baird, and Ames, Roger T. (eds.). 1989. Nature in Asian traditions of thought: Essays in environmental philosophy. New York: State University of New York.
Cao, Deborah. 2008. Dongwufa ji qita (Animal law and other matters: The need for intellectual debates about the status of animals in China). In Animal welfare law: Focal and difficult issues, ed. Jiwen Chang, and Paul Littlefair, 19–38. Beijing: China Law Press.
Caras, Roger A. 2002. A perfect harmony: The intertwining lives of animals and humans throughout history. West Lafayette: NotaBell Books.
Chang, Jiwen. 2006. Dongwu fuli fa (A comparative study of animal welfare law in China and the European Union). Beijing: Kexue huanjing chubanshe.
Cheng, Chung-ying. 1986. On the environmental ethics of the Tao and the Ch’i. Environmental Ethics 8(4): 351–370.
Cheng, Chung-ying. 1991. New dimensions of Confucian and Neo-Confucian philosophy. Albany: SUNY.
Cobb, John B. Jr. 1972/1995. Is it too late? A theology of ecology. Revised Edition. Denton, TX: Environmental Ethics Books.
Economy, Elizabeth C. 2004. The river runs black: The environmental challenge to China’s future. Ithca and London: Cornell University Press.
Elvin, Mark. 2004. The retreat of the elephants: An environmental history of China. New Haven and London: Yale University Press.
Foucault, Michel. 2001. The order of things: Archaeology of the human sciences. Abingdon: Taylor and Frances Ltd.
Francione, Gary L. 1995. Animals, property, and the law. Philadelphia: Temple University Press.
Girardot, N.J., James Miller, and Xiaogan Liu (eds.). 2001. Daoism and ecology: Ways within a cosmic landscape. Harvard: Harvard University Press.
Hall, David L., and Roger T. Ames. 1987. Thinking through Confucius. Albany: State University of New York Press.
Hall, David L., and Roger T. Ames. 1995. Anticipating China: Thinking through the narratives of chinese and western culture. Albany: State University of New York Press.
Jiang, Chaojun. 2006. Daojiao shengtai lunli sixiang yanjiu (Studies of Daoist Ethics on Ecology). Beijing: Dongfang chubanshe.
Johnson, Wallace. 1979. The T’ang Code: Volume I, general principles (trans:). Princeton: Princeton University Press.
Johnson, Wallace. 1997. The T’ang Code: Volume II, specific articles (trans:). Princeton: Princeton University Press.
Jones, William C. 1994. The great Qing Code (trans:). Oxford: Clarendon Press.
Philip, Novak. 1993. Tao how: Asian religions and the problem of environmental degradation. Revision 16: 77–82.
Ridley, Matt. 2003. Nature via Nurture : Genes, experience, and what makes us human. London: Fourth Estate.
Sterckx, Roel. 2002. The animal and the Daemon in early China. New York: State University of New York Press.
Schwartz, Benjamin I. 1985. The world of thought in ancient China. Cambridge/London: The Belknap Press of Harvard University Press.
Steiner, Gary. 2005. Anthropocentrism and its discontents: The moral status of animals in the history of western philosophy. Pittsburgh: University of Pittsburgh Press.
Taylor, Angus. 2003. Animals and ethics: An overview of the philosophical debate. Ontario: Broadview Press.
Tu, Weiming. 1989. The continuity of being: Chinese visions of nature. In Nature in Asian traditions of thought: Essays in environmental philosophy, ed. J.B. Callicott, and Roger T. Ames, 67–78. New York: SUNY.
Tuan, Yi-Fu. 1968. Discrepancies between environmental attitude and behavior: Examples from Europe and China. The Canadian Geographer 12: 176–191.
Tuan, Yi-Fu. 1970. Our treatment of the environment in ideal and actuality. American Scientists 58: 244–249.
Tucker, Mary Evelyn, and John Berthrong (eds.). 1998. Confucianism and ecology: The interrelation of heaven, earth, and humans. Harvard: Harvard University Press.
Xue, Yunsheng (ed.). 1999. Tang Ming Lü hebian (A collection of the Tang and Ming codes). Beijing: China Law Press.
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Cao, D. Visibility and Invisibility of Animals in Traditional Chinese Philosophy and Law. Int J Semiot Law 24, 351–367 (2011). https://doi.org/10.1007/s11196-010-9185-6
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DOI: https://doi.org/10.1007/s11196-010-9185-6