Abstract
Like the other Chinese intellectuals during the May Fourth period, in his seminal work Eastern and Western Cultures and Their Philosophies, Liang Shu-ming asserted that the “distinguishing unique features” of the modern Western civilisation as a whole, in general, lie in the “spirit of democracy” and the “spirit of science”, that is, in the words of that time, Mr. De (德先生) and Mr. Sai (赛先生). These were an expression of the universally accepted perceptions about the modern Western spiritual characteristics in China of that time. Subsequently, the mainstream of the Western polity which had developed up to the time when Eastern and Western Cultures and Their Philosophies was published also can be roughly characterized in terms of the spirit of both “democracy” and “science”, and so could “Western law”.
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- 1.
LSM, (1921), at 1: 321–598.
- 2.
LSM, Eastern and Western Cultures and Their Philosophies (1921), 1: 370.
- 3.
LSM, The Gist of Rural Reconstruction (1936), 1: 654.
- 4.
LSM, ibid., at 599–720.
- 5.
LSM, Eastern and Western Cultures and Their Philosophies (1921), 1: 654; “The Road to Constitutional Government in China” (1944), 6: 474.
- 6.
LSM, The Gist of Rural Reconstruction (1936), 1: 654–5.
- 7.
LSM, Essential Meanings of the Chinese Culture (1949), 3: 293.
- 8.
For the purpose of clarifying and comparing with the accounts of my book’ subject, here it would be relevant to quote a sentence from Krishan Kumar. In talking about Henry Maine’s idea of progress, Kumar pointed out this historical fact:
The unique pluralism of Western political society, after the fall of the Roman Empire, meant ceaseless social disruption and many bloody wars; but by the same token the lack of a commanding sovereign power enables different parts, at different times, to vary their behaviour in such a way as, in changed circumstances, to be the spearhead of new developments within the whole body of Western society (for instance the Renaissance, the Reformation, the Scientific and Industrial Revolution). Progress was achieved at the cost of relative stability—but the fossil record, geological and historical, is full of the bones of comfortably adapted stable (or ‘stationary’) societies.
For details see his “Maine and the Theory of Progress”, in Alan Diamond (ed.), The Victorian Achievement of Sir Henry Maine: A Centennial Reappraisal, at 86.
- 9.
A.V. Dicey, Introduction to the Study of the Law of the Constitution, at 48.
- 10.
Cf., Henry Sumner Maine, Ancient Law, in particular, the end passage of Chapter 5, from 169–170. Here I suggest to make reference to this book does not mean that I agree completely with the all its judgments, for example, the formulation of the distinction between the “progressive” societies and “stationary” ones.
- 11.
Julius Stone, Human Law and Human Justice, at 355.
- 12.
John W. Salmond, Jurisprudence or The Theory of the Law, at 59. Here I would quote a paragraph from James C. Carter and I believe that it would be illustrative of this subject. In The Proposed Codification of Our Common Law, Carter wrote:
states of popular origin. …Nor is this contrast accidental. It arises necessarily from the fundamental difference in the political character of the two classes of States. In free, popular States, the law springs from, and is made by the people; and as the process of building it up consists in applying, from time to time, to human actions the popular ideal or standard of justice, justice is the only interest consulted in the work. In despotic countries, however, even those where a legislative body exists, the interests of the reigning dynasty are supreme; and no reigning dynasty could long be maintained in the exercise of anything like absolute power, if the making of the laws and the building up of the jurisprudence were intrusted, in any form, to the popular will. The sovereign must be permitted at very step to say what shall be the law. he cannot say this by establishing a custom, or by interpreting popular custom. He can say it only by a positive command, and this is statutory law; and when such positive command embraces the whole system of jurisprudence it becomes a Code. The fundamental maxim in the jurisprudence of popular States is, that whatever is in consonance with justice as applied to human affairs, should have the force of law.
for details see his book at 6–7.
- 13.
Lord Denning, The Road to Justice, at 6–7. Cf., in general, Julius Stone, Human Law and Human Justice; Alice Erh-Soon Tay, “The Sense of Justice in the Common Law”, in Eugene Kamenka and Alice Erh-Soon Tay (eds.), Justice, at 79–96.
- 14.
Hans Kelsen, “The Pure Theory of Law and Analytical Jurisprudence” (1941), reprinted in What Is Justice, at 266. The writings on justice fill libraries, here I would suggest a further reference on the subject is Thomas Morawetz (ed.), Justice.
- 15.
LSM, “The Problem of China’s Local Self-government” (1932), 5: 338.
- 16.
LSM, Essential Meanings of Chinese Culture (1949), 3: 84–85, 159; “Probing the History of the Traditional Chinese Society was the Marxist Asian Pattern” (1974), 7: 251.
- 17.
LSM, “Final Awakening of the National Self-salvation Movement of the Chinese People” (1930), 5: 81; Essential Meanings of the Chinese Culture (1949), 3: 286.
- 18.
LSM, Essential Meanings of the Chinese Culture (1949), 3: 191; The Theory of Rural Reconstruction (1937), 2: 175, 179, 221.
- 19.
LSM, Eastern and Western Cultures and Their Philosophies (1921), 1: 370, 356.
- 20.
Tu Wei-ming, Confucianism: Symbol and Substance in Recent Times, in his Humanity and Self-Cultivation: Essays in Confucian Thought, at 258.
- 21.
Tu Wei-ming, ibid., at xxii. The whole passage is:
To be sure, my research on modern Confucian symbolism is still tentative. And, undeniably, my interpretive position on the transformation of Confucian thought in contemporary China has been affected by a deep concern for the continuous well-being of this great tradition. My observations are, however, not purely “personal.” I maintain my sentiment against the modernist claims that it is neither desirable nor practicable to cherish the old in order to discover the new is being shared by an increasing number of academicians. …I believe that it is because we can reanimate the old that we are hopeful of attaining the new.
- 22.
LSM, Essential Meanings of the Chinese Culture (1949), 3: 69, 199–206, 313.
- 23.
Liang Ji, Collected Writings of Mr. Liang of Guilin, in LSM, 1: 549–597. Quote from Guy S. Alitto’s translation in his The Last Confucian: Liang Shu-ming and the Chinese Dilemma of Modernity, at 40.
- 24.
The gradual transition, for instance, from absolutely individualist doctrine to keeping balance between it and collective welfare, was one of the changes among the later 19th century and the early years of this century. For a classic statement of the late nineteenth century’s gradual replacement of individualist doctrine with “collectivism”, see A.V. Dicey, Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century. For an analogous development in Germany, see Michael John, “The Peculiarities of the Germany State: Bourgeois Law and Society in the Imperial Era”, in 119 Past and Present (1988), at 107 Seq.
- 25.
George Eliot, Middlemarch, Finale.
- 26.
For the ideological and social background of Weimar Constitution see generally Peter C. Caldwell, Popular Sovereignty and the Crisis of German Constitutional Law: The Theory and Practice of Weimar Constitutionalism.
- 27.
LSM, The Theory of Rural Reconstruction (1937), 2: 298–305; “The Problem of China’s Local Self-government” (1932), 5: 342–3.
- 28.
LSM, Essential Meanings of the Chinese Culture (1949), 3: 92–95.
- 29.
LSM, ibid.
- 30.
LSM, “Coincidence of Politics and Moral Cultivation” (1935), 5: 675–676; “The Problem of China’s Local Self-government” (1932), 5: 342–343.
- 31.
LSM, 5: 133–173.
- 32.
LSM, ibid., 5: 134.
- 33.
LSM, ibid., 135–37.
- 34.
LSM, ibid., at 135.
- 35.
LSM, ibid.
- 36.
LSM, ibid., at 139.
- 37.
LSM, ibid., at 139.
- 38.
LSM, ibid., 135.
- 39.
LSM, ibid., 140.
- 40.
LSM, “Prophesying Disaster if There Is An Election; Resurrecting the Debate on Constitutional Government” (1947), 6: 705.
- 41.
Zhang Jun-mai, “On the View of Life” (1923), reprinted in Science and View of life, at 1–14.
- 42.
Ding Wen-jiang, Metaphysics and Science, Ibid., at 15–44.
- 43.
Chow Tse-tsung, The May Fourth Movement: Intellectual Revolution in Modern China, at 355. The through description about this debate can be obtained from this book at 333–337. For an epistemological reflection on such phenomenon, Cf., in general, Qian Mu, The Chineseness and the Chinese Culture in the View of Chinese History, in particular, its “Introduction”, at 12.
- 44.
About the circumstances surrounding the beginning and development of the large number of Chinese youths who studied abroad, and their impacts upon Chinese society and government, in the recent history of China, see Y.C. Wang, Chinese Intellectuals and the West: 1872–1949. For the accounts about law students, see Hao Tie-chuan, “The Chinese Law Students Who Studied Abroad and the Legal Modernisation in Modern China”.
- 45.
Joseph R. Levenson, Confucian China and Its Modern Fate, at 1, 109–116; Cf., Guy S. Alitto, op., cit., at 86.
- 46.
Guy S. Alitto, op. cit., at 178. But in the same book, contradictorily, Alitto commented again that
Although there are several areas in which Liang’s theories overlap with Marxist views, his emphasis on the primacy of consciousness places him squarely in opposition to the historical-materialist interpretation of culture, an interpretation just gaining popularity in China at the time.
For details see at 85.
- 47.
Edward Sapir, “The Status of Linguistics as a Science”, in Selected Writings in Language, Culture and Personality (ed. by D.G. Mandelbaum), at 162.
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Xu, Z. (2017). The Western Legal Spirit: An Observation from the Perspective of Confucianism. In: The Confucian Misgivings--Liang Shu-ming’s Narrative About Law. Springer, Singapore. https://doi.org/10.1007/978-981-10-4530-1_10
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