Abstract
A country’s legal system plays an important role in adjusting social order and economic development. A capable legal system will enlarge the range of anonymous market transactions76 and reduce the market transaction costs with the rules.77 In China, high costs in defining property rights and the difficulties in building up a well-functioning market mechanism to large extent relate to the functioning of civil law. As China has more than 2000 years of Confucianism tradition, informal law still has a strong influence in Chinese society today. For example, in urban areas, the resolution of disputes still relies heavily on customs, morals, trust and reputation. ‘It has admittedly been observed that the tradition of Confucianism ... leads to a dim view of law and a characteristic tendency to resolve disputes otherwise than by recourse through the courts’.78 Due to the long tradition of Confucianism and its influence on dispute resolution, the legal system does not work efficiently. The influence of Confucianism sometimes even hinders the development of legal development. From history, informal means of dispute resolution have a long tradition in China and are enormously more important. The legal system in China has roots in its culture and social background with distinctive features. The law in China “differs fundamentally from legal families of Western laws which are used for purpose of dispute resolution by issuing a conclusive and binding judgment and taken as a means of ordering social life”.79 From historical viewpoint, social relations are regarded as part of the natural order in China. Such a view is found in the doctrines of Confucianism80, which has long tradition and strong influence on Chinese social life and the development of legal system in China. Confucianism was adopted as the ruling tool in Han Dynasty when Tun Chung-Shu (174 to 104 BC) incorporated elements of his philosophical thoughts into Confucianism and produced a doctrine of cosmic harmony.81
Confucius lived from 551 to 479 BC. In the “Chun Qiu” time (770 to 476 BC) and “Zhan Guo” time (476 to 222 BC), the law developed from custom law to coded law. The representatives of this time are Confucius and Meng, Ke (ca. 372 to 289 BC), who stressed on the importance of god, Wiseman, especially the importance of the rulers and its advisers, they also stressed the importance of ethical education and argued that “ethics first, penalty comes to the second”. On the contrary, the representatives of the same time, Shang, Yang (390–338 BC) and Han, Fei (280 to 233 BC) emphasized the importance of law; they did not agree the importance of the wise and the God, but stressed on the force and constraining effect of the law.
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References
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The doctrine of cosmic harmony is a form of Confucianism which constituted the ideology of the Chinese empire until the revolution of 1911. It Starts from the proposition that man and God, Heaven and earth, all things living and inert are organic parts of a harmoniously ordered and intergraded universe. The most important goal of man must therefore be to keep high thoughts, feelings, and actions in perfect accordance with cosmic harmony; in particular men must so conduct themselves as not to disturb the natural balance of their existing relations. The rules of ‘proper’ behavior were called ‘li’ and their content characteristically depended on the social Status of the person to whom they applied, his Status in his family, in his clan, in the neighborhood, in the official hierarchy, and in the State. Compare Zweigert & Koetz, An Introduction to Comparative Law, Cambridge, 1999, p. 288.
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(2006). Legal System and Civil Process in China. In: Court Delay and Law Enforcement in China. Gabler. https://doi.org/10.1007/978-3-8350-9012-5_3
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